Liang v Wincrest Group Pty Ltd

NCAT Appeal Panel|2018-02-19|Before: Mr J

Solicitors: Michael Atkinson & Associates (Appellants) Snelgroves (Respondent) File Number(s): AP 17/42500 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 August 2017 Before: I Bailey, Senior Member File Number(s): HB 17/21716

REASONS FOR DECISION

Min Cheng Liang and Xiao Yan Liang (the Owners) appeal against the decision made on 24 August 2017 in the Consumer and Commercial Division of the Tribunal dismissing their claim under the Home Building Act 1989 (the HB Act) against Wincrest Group Pty Ltd (the Builder), and the subsequent decision to order them to pay the Builder's costs.
Written reasons for the decision to dismiss the application were provided on 7 September 2017, and following an opportunity for submissions by the parties, the costs decision, with reasons, was provided on 6 February 2018.
The Notice of Appeal identified four grounds of appeal based on errors of law as follows: 1. There was a denial of procedural fairness in the conduct of the hearing (Ground 1); 2. The Member was disqualified from determining the application by reason of apprehended bias (Ground 2); 3. The Member identified the wrong issue, asked the wrong question, applied incorrect principles of law, failed to take into account relevant considerations, took into account irrelevant considerations, made findings in the absence of evidence, and the decision was unreasonable (Ground 3); and 4. The Member did not give adequate reasons (Ground 4).

Background

The Owners' claim arose from residential building work undertaken pursuant to a contract dated 26 November 2015 for construction of a house at Marsfield NSW. It was common ground that the contract was in the HIA NSW Residential Building Contract for New Dwellings form, for a fixed price of $685,468; that work started on 9 June 2016; and that the Builder gave notice of practical completion on 7 June 2017.
The Owners applied to the Tribunal on 14 May 2017 for orders that they not have to pay the Builder the amount of $78,603, claiming that they had been overcharged, that there had been delays, and that some work had not been performed or double charged (HB 17/21716).
The matter was listed for directions on 23 June 2017. Both parties appeared. The applicants were self-represented, and assisted by an interpreter. The following directions were made: 3. The Applicant has leave to amend the claim by 07-Jul-2017 by sending a copy of the amended claim to the Divisional Registrar and the other party, and including: •A list of each item claimed, specifying the monetary amount of each claim. •A copy of all invoices, quotes, statements and other documents which will be relied upon at the hearing including a submission identifying the legal basis for the claim. 4. Should the Respondent intend to bring a cross application, the Respondent shall on or before 07-Jul-2017 lodge an application with the Tribunal specifying: •the orders sought; •reasons for the orders sought together with full particulars including:monetary amount for each claim copy of all invoices, receipts, statements, statutory declarations and other written material relied upon. 5. Should the Respondent lodge an application by 07-Jul-2017 the registry is directed to list the new application and previous application 17/21716 together. 6. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 07-Jul-2017. Should the respondent bring a cross application, any documents in reply to such cross application are to be given to the Tribunal and the respondent by 21-Jul-2017. 7. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 21-Jul-2017. IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements / statutory declarations or affidavits - Expert reports - Photographs - Accounts or receipts - Quotations - Any other document to be relied upon - Submissions And all documents must be legible and in colour (if the original is in colour). 8. The documents provided by each party must be placed in a folder, each page must be numbered to provide easy identification by all concerned at the hearing. Folders provided to the Tribunal and to the other party must be identical and in the same order. The folder(s) should be marked with the name of the party and include: - a chronology of significant events - all documents required by these directions And all documents must be legible and in colour (if the original is in colour). 9. If a party requires an extension of time to comply with these directions, an application should be made in writing to the Divisional Registrar no later than the day prior to the date of submission of documents to the Tribunal. 10. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so. 11. All evidence from a party's witness(es) in support of that party must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. A separate written notice of the new hearing date will be sent to you in the near future.
The Notice of Order included the standard notes provided in directions for matters under the HB Act. The Notes included: Introduction: These directions are made pursuant to the NSW Civil & Administrative Tribunal Act and to the Procedural Directions issued under that Act. Parties should ensure that they have read those Directions (including directions relating to expert witnesses) and that they fully comply with those Directions and these procedural directions. Parties should carefully note that these directions are compulsory. They can only be departed from (whether by way of extension of time, adjournment, or otherwise) with permission from the Tribunal. The granting of permission may include an order that the applicant for leave pays costs. Timetable Exchange of Documents All material on which parties propose to rely is to be provided in advance of the hearing and in accordance with the following timetable. Parties are to provide documents typed (except for copies of original handwritten documents), with numbered paragraphs and numbered pages. Documents should be bound in a ring binder or similar holder. The documents to be provided will always include on the part of an applicant or crossapplicant a brief outline of the claim, stating in numbered paragraphs the orders (for example, payment of money, repair of defective work) that are sought, and the reasons for seeking those orders. The documents to be provided will always include on the part of a respondent or crossrespondent a brief outline of the defence, the reasons for opposing the claim or cross-claim, in numbered paragraphs that correspond to the numbers in the outline of claim as far as practicable. Other documents to be provided, depending on the case, will usually include: -A chronology setting out briefly the dates on which important events (for example, the signing of the contract, the commencement of building works) took place. -The contract, if there was a written contract, or a written statement explaining how the parties agreed for the building work to be done. -Any certificates of insurance. -Any bills, invoices, receipts, accounts bank statements or other evidence of requests for payment or of payment relevant to the case. -Any experts' reports on which the applicant intends to rely at the hearing, which should, as far as practicable, be in numbered paragraphs corresponding to the outline of claim. -Any statements by witnesses other than experts on which the applicant intends to rely at the hearing. -Any relevant photographs, video or audio tapes, or other evidence and -A Scott Schedule: the cells of which shall, as far as possible, be numbered to correspond with the outline of claim. Parties may not present any evidence in chief, whether spoken or written, at the hearing of their case unless that evidence has already been provided to the Tribunal and other party/ies in accordance with Tribunal directions, unless the Tribunal grants leave to do so in accordance with the Procedural Directions.
In accordance with Order 4 made on 23 June 2017, the Builder lodged an application on 7 July 2017 (HB 17/30672) in which it claimed payment of $10,545.65 being interest applicable to late payments under the terms of the contract between the parties. It was noted that the total amount claimed by the Builder under the contract had been paid.
In accordance with Order 5 made on 23 June 2017, both matters were listed for hearing together, on 24 August 2017. On 19 July 2017 an extension of time was granted at the request of the Owners for the provision of documents, requiring the Owners to provide their documents in HB 17/21716 by 21 July 2017 and in reply to the Builder's cross application by 4 August 2017; and for the Builder to provide its documents by 4 August 2017.
The Owners provided documents to the Tribunal in support of their application on 24 May 2017. A further bundle of documents was provided, with an "Updated Claims List" dated 20 July 2017. That document specified additional claims not previously mentioned, including claims concerning a plastic water pipe, the cost of tidying up the site, $6,000 for delay to completion, a service fee for traffic control, for delay in commencement, and a complaint about delay in delivery of an occupation certificate. Those claims totalled $33,793.00, bringing the total amount claimed by the Owners to $112,396.00.
The Builder's documents, being a statement by Mr Gerard Caruana, Director of the Builder, and supporting documents, were filed for both HB 17/21716 and HB 17/30672 at the Tribunal on 2 August 2017.

The first instance proceedings

At the hearing on 24 August 2017 the parties were self-represented, and an interpreter arranged by the Tribunal was present. The Owners were assisted by a friend, Ms Helen Pan, who spoke on their behalf. The Builder was represented by Mr Caruana.
At the conclusion of the hearing, the Member dismissed the Owners' claim in HB17/21716. The Member reserved his decision in the Builder's claim (HB 17/30612) with directions for the Owners to provide further submissions in writing, to be determined on the papers. The parties were directed to provide submissions as to the costs of both proceedings.
Written reasons in HB 17/21716, stated to be in addition to the explanation and reasons given during the hearing were provided on 7 September 2017. On 6 February 2018 the Builder's claim in HB 17/30672 was dismissed, with written reasons provided. On 6 February 2018 the Member ordered the Owners to pay the Builder's costs in HB 17/21716, and in the Builder's claim in HB 17/30672 ordered that each party pay their own costs of the proceedings, providing written reasons.
The Owners provided to the Appeal Panel a copy of the sound recording of the hearing and a transcript, which was agreed to be accurate. Our discussion of the conduct of the hearing is based on that transcript.

The Member's Reasons

In his written reasons the Member summarised the Owners' initial application seeking $78,603.00 ([3]), and noted that the Owners had provided on 25 May 2017 a bundle of documents, the majority of which were copies of contract documents, and with many notations and highlights, which was not provided to the Builder ([6]). The Member summarised at [7]-[11] the procedural background, and included the directions made on 23 June 2017 and relevant parts of the accompanying notes. At [12] the Member noted that the Owners' claim was for a total of $112,396.00 including the "Updated Claims List" provided on 20 July 2017. The Member's reasons continue: 14 Notwithstanding the clear and careful words used in the Tribunal's Orders made on 23 June 2017, see [7], the Applicant claims to have not understood that in order to succeed in making the claims in the Application there would need to be some material tendered to prove them. 15 In the course of the hearing the Tribunal explained that not only was there no evidence which could prove the claims, there was no document prepared by the Applicant which explains how the claims were calculated. The directions made on 23 June 2017 were unambiguous, in particular the warning at the end of the orders. 16 The complete absence of evidence meant that, consistently with the Guiding principle in section 36 of the Civil & Administrative Tribunal Act 2013 and many decisions of the Tribunal in such circumstances there was no alternative other than that the Application be dismissed. 17 The Respondent, albeit only shortly before the hearing, provided a response to the Updated Claims List which provided answers to most of the matters raised. 18 A most compelling concern of the Tribunal was that not only was there no evidence in support of the claims made by the Applicant, there was no coherent statement outlining the legal basis for the majority of the claims. For example no attempt had been made to develop the lengthy allegations of overcharging into an explanation as to how this occurred. 19 The Tribunal explained during the course of the hearing that the mere propounding of a claim, without any explanation as to the legal basis of the claim and more significantly without any guidance as to how the claim was calculated, was wholly unacceptable and doomed to fail. 20 The total absence of supporting evidence was, in the circumstances, fatal for the Application.

The Appeal

The Notice of Appeal was lodged within the time specified in rule 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules).
The Owners and the Builder were legally represented at the appeal and provided written submissions. The appellants provided copies of the documents provided by the Owners on 24 May 2017, 20 July 2017, and the documents sought to be handed up at the hearing on 25 August 2017.
As noted above the decision on costs of the first instance proceedings was delivered on 6 February 2018, and by consent, leave was granted for the Owners to amend their Notice of Appeal to add to the challenge to the order in HB 17/21716 dismissing the claim, the order that the Owners pay the Builder's costs of those proceedings assessed on the usual basis. There is no appeal by the Builder against the dismissal of its claim in HB 17/30672, and no appeal against the costs decision of 6 February 2018 in that matter.
The Owners' representative confirmed that the orders sought on the appeal are: 1. The appeal is allowed; 2. The decision of 7 September 2017 is set aside; 3. The application is remitted to the Consumer and Commercial Division for determination; 4. The application to be listed for directions including setting a timetable for the filing of further evidence; and 5. If the appeal is allowed, the decision of 6 February 2018 on costs is set aside.
The Builder contends that there were no errors on questions of law, and that leave to appeal should be refused having consideration to the quantum of the Owners' claim and the deficiency in the evidence at first instance. The Builder agrees that if the appeal is allowed the costs decision should be set aside.

Ground 1

The Notice of Appeal particularises the basis on which a denial of procedural fairness is contended, to be the dismissal of the claim by reason of: 1. Holding that the Owners failed to serve on the Builder the documents to be relied upon without hearing oral evidence from Ms Liang, notwithstanding that English was her second language; 2. Holding that the application was "doomed to fail" and there was no alternative other than to dismiss it, because the Owners had failed to provide a statement in accordance with the directions outlining how the claim was calculated and the legal basis for the majority of the claims; 3. Holding that the response provided by the Builder provided answers to most of the matters raised in the Updated Claims List without providing an opportunity to respond; 4. Failing to notify the Owners of the opportunity to apply for an adjournment and/or to grant an adjournment to provide an opportunity for the Owners to rectify the matters in (1), (2) and (3) above; 5. Failing to grant the application to adjourn to address and rectify the matters in (1), (2) and (3) above; 6. Failing to provide an opportunity give oral evidence on the issues of the service of the Owners' documents, how their claim was calculated, the legal basis for the claims, and responding to the matters in (3) above; 7. In circumstances where the Owners were self-represented, English was a second language, and not able to properly articulate how the claim was calculated and the legal basis of it, the Member failed to consider the documents filed on behalf of the Owners and determine how the claim was calculated and its legal basis; 8. Applying the technicalities and legal forms contained in the directions of 23 June 2017 to dismiss the claim, contrary to s 38(4) of the NCAT Act; 9. Failing to take measure to ensure the Owners had a reasonable opportunity to be heard and have their submissions considered, contrary to s 38(5) of the NCAT Act; 10. Failing to determine the procedure to be adopted and inquire into and inform himself of how the claim should be calculated and its legal basis, contrary to s 38(1) and (2) of the NCAT Act.
In submissions the Owners argued that there was a denial of procedural fairness in the Member's refusal of two applications to adjourn, in circumstances where: 1. The Owners had language difficulties; 2. The Owners were not represented; 3. The Owners were operating under a complete misunderstanding of what was required by the directions made on 23 June 2017, and were of the understanding that the covering letter attached to the original claim and the Updated Claims List complied with the directions; 4. The Owners were also seeking to meet the material served in support of the Builder's cross application, which had been served in breach of the direction only one day before the hearing; and 5. The Member would not allow the Owners to provide oral evidence.
The refusal of the applications to adjourn was a constructive failure to exercise the jurisdiction of the Tribunal, and no adequate reasons for that refusal were provided. The Owners accept that there was a failure to comply with the directions and there was no witness statement, however the jurisdiction conferred on the Tribunal pursuant to s 38, in particular s 38(2), (4) and (6), of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) goes further, and the Tribunal had an obligation to go further and try to elucidate evidence as to what the issues were.
The Owners submit that there was no hearing on the merits at all, and in effect it was a summary dismissal based on failure to comply with the directions.
The Owners submit that the Member's refusal to allow Ms Liang to give oral evidence in place of a witness statement was a constructive failure to exercise jurisdiction, there being express power to do so conferred by s 38(6). To have allowed oral evidence or to adjourn could have made the Owners' case more coherent, which was an aspect of a reasonable opportunity to be heard.

Ground 2

The Owners submit that when regard is had to the late service of the Builder's material, the death of Ms Liang's father two weeks earlier, the failure of the Owners to file a "statement of evidence" in accordance with the directions, and the refusal to permit oral evidence; the failure of the Member to give reasons other than "speed" for refusing the application to amend and the application to adjourn; the refusal to allow oral supplementary evidence; and the decision to dismiss the application solely based on the Owners' misunderstanding of the directions, a fair minded lay person would have reasonable apprehension that the Member did not bring an impartial and unprejudiced mind to the resolution of the issues he had to decide.

Ground 3

The Owners submit that when regard is had to the history of the matter, and the fact that there was no determination on the merits, a denial of procedural fairness, and apprehended bias, the decision was one that no reasonable member of the Tribunal would have made.

Ground 4

The Owners submit that for all those reasons no adequate reasons consistent with and in accordance with the NCAT Act were provided in the written reasons or the transcript to support the refusal to grant the adjournment applications, the refusal to allow supplementary oral evidence, and/or the refusal to permit the Owners to amend their claim.

Ground 5

The Owners submit that there was no hearing on the merits of their claim, and the Member's decision was in effect a summary dismissal. The determination was based simply on the purported non-compliance with the procedural directions, and the Member did not examine or make findings regarding either the issues in dispute or the evidence in support.

The Builder's submissions

The Builder submits that: 1. there was no denial of procedural fairness, in that the Owners were given numerous opportunities to present evidence either orally or in writing. The Tribunal appointed an interpreter who was present throughout the hearing; 2. There was no basis for a finding of actual or apprehended bias, and the Member was considered and open; 3. The Owners presented their case and documentation, however despite orders being made to do so failed at any time during the proceedings below to file any statement of evidence or affidavit in support of the claim or amended claim; 4. The Member provided adequate reasons, explaining that the Owners had no coherent evidence on which the Tribunal could satisfactorily rely to make a decision on the application and orders had been made that evidence should be provided; and 5. On the basis of the Owners' failure to provide evidence to support the claim the Tribunal was not in a position to determine the proceedings on the merits.
In oral submissions the Builder submits that the Member took pains to help the Owners including adjourning to get Mr Caruana to assist Ms Liang to get the documents in order. There was an interpreter present at the directions hearing and the hearing and at all times the Owners could have obtained legal advice. There was no cogent evidence on which the Member could have made findings, and there was no request for an adjournment to obtain legal advice.

Consideration

This is an internal appeal pursuant to s 80 of the NCAT Act. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) 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).
In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]…[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [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 . . . 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As explained in Collins v Urban at [84], 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; 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.

Ground 1

The primary challenge to the Member's decision is based on a denial of procedural fairness. A denial of procedural fairness would constitute an error on a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Section 38(5) of the NCAT Act, and the general law rules of procedural fairness, require that the Tribunal ensure that each party to proceedings in the Tribunal has a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. There are two aspects of the general law obligation of procedural fairness: first, that before a decision is made adversely affecting a person's rights or interests, the person is entitled to know the information on which the decision may be based and the right to be heard in reply; and secondly, that a decision-maker must be free of any reasonable suspicion or apprehension of bias or prejudgment.
As outlined in the Notice of Appeal and in submissions, the substance of the Owners' claim that there was a denial of procedural fairness is based on the following: 1. Not allowing the Owners to rely on the documents brought to the hearing; 2. Deciding that the claim had to be dismissed because of the Owners' failure to provide a statement outlining how the claim was calculated and its legal basis; 3. Not allowing oral evidence to supplement the absence of a witness statement; 4. Not notifying the Owners of the right to apply for an adjournment to rectify the deficiencies in the documents provided; 5. Not granting the application for an adjournment; 6. Not considering the documentation provided, to identify and determine, or inquire into, how the claim was calculated and its legal basis; 7. Applying "technicalities or legal forms" contrary to s 38(4) of the NCAT Act; and 8. As a consequence, failing to take measures to ensure that the Owners had a reasonable opportunity to be heard and have their submissions considered.
The application of the principles of procedural fairness must be considered in the statutory context. The NCAT Act provisions on which the Owners relied in that regard are ss 38(2), (4), (5) and (6). In Mesiha v Murrell [2017] NSWCATAP 1, the Appeal Panel summarised the statutory obligations of the Tribunal in the following terms: 36. Section 36(1) of the NCAT Act requires the Tribunal to give effect to the guiding principle which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is required to exercise the powers given to it in order to give effect to this principle: S36(2). The parties are under a duty to cooperate with the Tribunal to give effect to this principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal": S36(3). In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": s36(5). 37. Section 38 of the NCAT Act provides that: (1) while the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice: s38(2); (2) the Tribunal is to act with as little formality as the circumstances of the case admit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s38(4); (3) the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings: (a) understand the nature of the proceedings: s38(5)(a); (b) have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c). 38.These requirements make clear that in giving effect to the guiding principle the Tribunal is to have regard to the interests of both parties as well as issues of proportionality which include issues of cost and the impact upon the Tribunal in meeting its obligations in respect of other applications which it is required to determine.
Subsection 38(6)(b), on which the Owners relied, provides that the Tribunal "may require evidence or argument to be presented orally or in writing".
The first issue to consider is the attempt by the Owners to provide additional documents on the day of the hearing. The Owners have provided a copy of those documents in their appeal. The first document is a summary page of items which appears to be both a list of items asserted to be overcharged, and a second section headed "Wincrest Counter Claims" which appears to be a response to the Builder's claim in HB 17/30672 for interest. There follows a page headed "Liquidation Claim to Wincrest" which appears to state the amount claimed by the Owners including the figure overcharged ($100.620.65) plus "Liquidation Claims" of $94,584.38 being claims based on working days, for extra rental paid, extra interest on land value, and interest paid to the Builder, concluding that the "Final Total Claims to Wincrest but not limited is" $195,205.03. There is then a four page timeline which concludes "There are no reason why we should be charged any interests on late payments due to work were not completed as per contract item". The supporting documents are a mix of photographs, extracts from a tender document, variations, and an email.
The directions of 23 June 2017 had required the Owners to provide details of any amended claim, and supporting evidence, by 21 July 2017, subsequently extended to 4 August 2017. The additional documents on which the Owners wanted to rely had not been served in accordance with the procedural directions, or provided to the Builder until the hearing began. Those documents are both a reply to the Builder's case in HB 17/30672, and an amendment of the claim in HB 17/21716 as represented in the initial application and in the documents of 20 July 2017, both as to the items claimed and the amounts.
The issue is whether the Member erred in the exercise of his discretion conferred by s 41 of the NCAT Act in deciding not to extend time to amend the Owners' claim and provide evidence in support of it. The Appeal Panel in Mesiha distilled the principles relevant to the exercise of the discretion to extend time: 45. From these cases can be derived the following principles to be applied in determining an application for extension of time in the Tribunal: (1) the just resolution of proceedings remains the paramount consideration; (2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; (3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; (4) a party should be afforded a reasonable opportunity to present its case; (5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; (6) the nature of the case and its importance to the party seeking an extension of time needs to be considered; (7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; (8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; (9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.
The written reasons do not include a discussion of this issue. However, the transcript confirms that the Member put the Owners on notice that they would need leave to amend if claiming anything more or different to what was in the list provided on 20 July 2017 (p 9, 10). The Member asked why the new claim was being made on the date of the hearing (p 13). In response to the statement that the Owners had only received the Builder's documents two days earlier, the Member went through each of the documents, obtaining confirmation that there was nothing new in those documents, other than some documents relating to extensions of time which the Member described as a minor issue, and a Points of Cross Claim explaining how the Builder had calculated the interest. At p 17 Ms Pan confirmed that the Owners had received the documents beforehand, except the letter asking for an extension. The Member refused to permit the amendment of the claim proposed in the document served at the beginning of the hearing, explaining that it was an entirely new claim, made contrary to the directions that any amended claim be provided by 7 July 2017.
We are satisfied that having regard to the way in which the Member discussed the issues with the parties, and the matters which he put to them, it could not be said that the Member failed to have regard to or apply the relevant principles as outlined in Mesiha at [45].The decision whether or not to allow the Owners to rely on documents amending the claim which were not provided until the hearing required the exercise of a discretion. The test is not whether the Appeal Panel would have made the same decision, but whether it can be said that some error has been made in exercising the discretion, for example if the decision-maker has acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect the decision, or mistaken the facts, or has failed to take into account some material consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499.
There is no such error evident in the reasons given orally by the Member during the course of his ruling on that issue. A significant factor in the Member's ruling was that notwithstanding the Owner's claim that this was prompted by the Builder's late provision of documents, the Member confirmed that the Owners had not been taken by surprise by anything in the Builder's documents. The Builder confirmed that the Owners had paid the full contract sum and the Builder's claim was for interest on money overdue. The Owners have not established that there was a denial of procedural fairness or failure to comply with the statutory obligations in the Member's refusal to allow the Owners to rely on the documents provided at the hearing and amend their claim.
The next issue is the Member's refusal to adjourn the hearing. The application by Ms Pan for an adjournment was made after the Member had refused leave to amend the claim and rely on the documents provided at the hearing, and when the Member was discussing the state of the evidence in support of the claim of overcharging. In response to the Member's insistence that it be the evidence as filed in the tribunal, Ms Pan asked for an adjournment, stating that Ms Liang's father had passed away two weeks ago, and she had been contacting the solicitor without any communication (p 37). There was further discussion of the evidence, which the Member described as copies of documents, emails and photographs, an ASIC extract, and copies of the tender and the contract, with some handwritten notes (p 37) and the absence of a statement of evidence by Ms Liang to substantiate the basis on which she asserted that they had been overcharged. Ms Pan sought to rely on coloured highlighting on the documents, and the evidence relating to the elements of the claim was further discussed. Ms Pan made a further request for an adjournment (p 41), which was refused.
The applicable principles are discussed in O'Neill v T & I Engines Pty Ltd [2015] NSWCATAP 77, and more recently in Armee v Brearley [2017] NSWCATAP 141. In Armee v Brearley, the Appeal Panel said: 121. The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22].
After a consideration of the relevant authorities, the Appeal Panel referred to the summary of the principles governing an application for an adjournment in O'Neill v T & I Engines Pty Ltd [2015] NSWCATAP 77 at [22]: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
The written reasons do not disclose the Member's reasons for refusing the adjournment. Apparent from the transcript, however, is the focus of the Member's consideration on the failure of the Owners to comply with the directions of 23 June 2017. It is clear from Ms Pan's interventions that the Owners were claiming to have misunderstood what the directions required, and that once Ms Pan understood the deficiencies in how the Owners' case had been prepared, she requested an adjournment.
In support of the proposition that the Member should have adjourned the hearing, the Owners relied on language difficulties, that they were not represented, the late service of the Builder's documents, and the refusal of the Member to allow oral evidence from the Owners.
The Owners submit that the Member emphasised the need for speed, to the detriment of the other elements of the guiding principle in s 36(1). However, as noted by the Appeal Panel in O'Neill, referring to the decision of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
Further, as noted in Mesiha at [38], in giving effect to the guiding principle in s36(1) of the NCAT Act the Tribunal is required to have regard to issues of proportionality, including issues of cost to the parties and the Tribunal.
The Owners relied on the decision of the Court of Appeal in Italiano v Carbone [2005] NSWCA 177, an appeal from a decision of the former Consumer Trader Tenancy Tribunal relating to painting work done to Mr Carbone's house by the company of which Mr Italiano was sole director and shareholder, and in which the former Tribunal had made an order against Mr Italiano notwithstanding that no formal order had been made joining him personally as co-cross defendant. There was a divergence of opinion on the Court of Appeal, Einstein J finding that an adjournment should have been granted and there had been a denial of procedural fairness, whereas Basten JA held that it had not been demonstrated that the exercise of discretion in refusing the adjournment had resulted in procedural unfairness. That divergence of opinion on the facts of that case supports the proposition that refusal to grant an adjournment does not of itself constitute as denial of procedural fairness. What matters is whether, as expressed by Basten JA at [110], there has been a failure to ensure a party has a reasonable opportunity to present its case, and to take such steps as reasonably practicable to ensure that parties understand the nature of the assertions made in the proceedings and the legal implications of those assertions.
In this instance, while English was not the first language of the Owners, the transcript confirms that there was an interpreter at the hearing, and Ms Pan was able to speak on behalf of the Owners. While the Owners were not legally represented, they had been provided with detailed procedural directions, including explanatory notes, in the Notice of Order of 23 June 2017. It was also clear that they had previously consulted a lawyer. They were assisted in presenting their case by their friend Ms Pan. Further, Ms Pan conceded that the Owners had seen the Builder's documents before they were formally provided, other than the letters. In those circumstances, the only factor identified in submissions by the Owners that could possibly have supported the request for an adjournment was a request to allow Ms Liang to give oral evidence.
No such request was made in terms. At page 24 the Member pointed out that the Owners' materials did not provide the evidence in support of their claims, in contrast to the Builder's case where Mr Caruana had provided a statement of evidence annexing the documents believed to be relevant. At page 42, in response to the Member's comment that there needed to be a statement of evidence as to what happened, Ms Liang is recorded as stating "Okay. Then how about if I give you now…". It is not clear from the transcript whether that was a request to adjourn to allow for further documentary evidence (presumably including a statement by Ms Liang), or a request that she be allowed to give oral evidence. Even if this exchange be regarded as a request to be able to give oral evidence, it is clear from the Member's discussion with the parties as to the documents that had been provided, which included an explanation of the difference between evidence and submissions, that it was not simply the absence of a statement by Ms Liang, but the absence of other evidence to support the Owners' claim of overcharging as to what a reasonable price may have been, for example evidence from a quantity surveyor. The Member's conclusion, communicated to the Owners at the hearing, was that their documents in totality were assertions, but not evidence.
The Owners submit that the opportunity to give oral evidence may have made their case as to overcharging more coherent. However, the transcript confirms that it was not simply the way in which the evidence was sought to be provided, but a more fundamental failure to provide documents articulating the basis of the claim in accordance with order 3 of 23 June 2017. The Member was not obliged by s38 to permit the Owners to give oral evidence. The wording of Order 11, referring to evidence "from a party's witness(es)" and not a party, may have been confusing, however the final part of the Notes (in bold in the original, and in the extract above at paragraph [10]) made clear the importance of prior provision of all evidence. In any event, the decision not to permit oral evidence was, as was the case with the earlier procedural ruling, a discretionary one. We are not satisfied that the Owners have established an error in the exercise of that discretion of the House v R kind.
Given the detailed consideration during the hearing of each element of the Owners' claim in discussion between the Member and Ms Pan, we are not persuaded that the Owners have established that they were deprived of a chance to make their case coherent such that to refuse to allow supplementary oral evidence was a denial of procedural fairness.
The alternative basis for the challenge to the Member's failure to adjourn or permit oral evidence was that in doing so there was a constructive failure to exercise the jurisdiction conferred by statute, in this instance by s 38(2)-(6) of the NCAT Act. The clearest expression of that submission is in paragraph [25] of the Owners' written submissions: By reason of the statutory framework conferred upon both the Appeal Panel and the individual members of the Tribunal, each is under an obligation and a duty where the litigants are self-represented and who have difficulty or cannot clearly articulate either the grounds of appeal or the legal principles in support of their claim to carefully consider the material filed in support and to properly identify for itself either the grounds of appeal or the legal principles required to support that claim.
That is an accurate statement of the approach of the Appeal Panel in cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required: Prendergast at [12]. The Tribunal more generally is obliged to consider and deal with the substantial case put by a party: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389. However, it is not clear on what basis the Owners contend that the provisions of s38 of the NCAT Act go so far as to require the Tribunal to do more than ensure that they had a reasonable opportunity to present their case. The decision of the Court of Appeal in Italiano, on which the Owners relied, does not assist, as it was the failure of the Tribunal to ensure that Mr Italiano, not formally joined as a party and only named personally in an amended cross claim provided 2 days before the hearing, had an opportunity to present his case that lead Basten JA to describe the circumstances as a constructive failure to exercise the jurisdiction vested by statute. The Chief Justice approached the issue differently, concluding that rather than being a denial of procedural fairness, it was the failure to comply with the requirements for issuing proceedings or to take any formal step to recognise the amended cross claim, that invalidated the decision. In contrast, in these proceedings the Owners had initiated proceedings in which they bore the onus of proof, and the detailed directions made on 23 June 2017, two months before the hearing, explained what they needed to do to articulate and substantiate their claims.
In circumstances where detailed directions had been made to enable proper preparation for the hearing, including the guidance in the Notes; where the Owners had been granted an extension of time to provide their documents, and had previously had legal assistance; and where during the hearing the Member discussed the documents that had been provided with the Owners and Ms Pan, we are not satisfied that the Owners were denied a reasonable opportunity to present their case. There was no denial of procedural fairness, and Ground 1 is not made out.

Ground 2

The claim of apprehended bias is based on the circumstances of the request for an adjournment and its refusal; the failure of the Member to give reasons other than speed for refusing the application to amend or to adjourn; the refusal of the application to give supplementary oral evidence; and the dismissal of the Owners' original and updated claim solely based on non-compliance with the procedural directions due to the Owners' misunderstanding.
There will be reasonable apprehension of bias if a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
The substance of the specific complaints as to how the hearing proceeded, and the challenges to the Member's procedural rulings, are addressed above. A fair reading in the totality of the transcript including the procedural rulings and the written reasons reveals that the dismissal of the Owners' claim was not solely based on their non-compliance with the directions. Having regard to the transcript, we are not satisfied that there is any basis in how the hearing was conducted on which it might be argued that a fair minded observer might reasonably consider that the Member might not have brought an "impartial and unprejudiced mind" to the resolution of the issues. The transcript confirms that the Member adjourned the hearing briefly to enable the Owners to get their papers in order so the hearing could proceed, enlisting the assistance of Mr Caruana in that task; that he was equally critical of the Builder for its failure to submit its documents in accordance with the directions; that he explained the issues that required determination, and that the Owners bore the onus in that regard; and that he discussed each of the documents on which the Owners were seeking to rely, before reaching his conclusion that the application had to be dismissed. Ground 2 is not made out.

Ground 3

In submissions, this ground was based on the proposition that the Member's determination was so unreasonable that no reasonable decision maker could have made it. If established, that would constitute an error of law: Prendergast at 13. The Owners submits that had the application been determined in accordance with the jurisdiction vested in the Tribunal by s 38(2)-(6) of the NCAT Act, in particular by permitting Ms Liang to give oral evidence, a different outcome would have been obtained. Having regard to our conclusions above as to Grounds 1 and 2, the central argument for Ground 3 appears to be a disagreement with the merits of the ultimate outcome. The Member's conclusion as expressed in paragraphs [18]-[20] of his written reasons, in circumstances where, as he had reminded the Owners during the hearing, they bore the onus of establishing their claim, was clearly open to him based on the material before him. The Owners have not established that the Member's conclusion was so irrational or illogical as to meet the demanding test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, or as more recently developed by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. Ground 3 is not made out.

Ground 4

A failure to provide adequate reasons is an error of law: Prendergast at 13. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 discussed the circumstances in which reasons are required, including the obligation imposed by s 62 of the NCAT Act, and noted: 49 One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance.
The fundamental requirement is that the essential ground or grounds upon which the decision rests should be articulated: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
The extent of reasons required to be given by the Tribunal was considered by the Appeal Panel in Hernady v Raccini [2016] NSWCATAP 67. After noting the requirement for proportionality in s36(4), the Appeal Panel commented that reasons should not be overly elaborate and deal with the relevant issues as concisely as possible, continuing at [44]: 44. In addition, we bear in mind the principles expounded in the authorities concerning the extent of reasons required to be given including the following: (1) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56]; (2) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]; (3) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48].
In oral submissions the Owners focussed on a challenge to the Member's conclusion as expressed in paragraph [20] of his written reasons, and his failure to refer to the provisions in s 38(1) to (6) of the NCACT Act.
The Member's written reasons are succinct. However, those written reasons were, as stated in paragraph [2], provided "in addition to the explanation and reasons given during the hearing". The transcript discloses that the Member gave oral reasons for his rulings on the refusal to permit further amendment of the claim and introduce documents not previously provided to the Tribunal or the Builder, and his refusal to adjourn the hearing or to allow Ms Liang to supplement her case with further evidence including oral evidence. While the Member did not in terms refer to s 38 of the NCAT Act, and his rulings on the amendment of the claim and the adjournment request could have been more clearly expressed, his procedural rulings during the course of the hearing did not in substance depart from the procedural flexibility and obligations conferred and imposed by s 38. The transcript discloses that during the course of the hearing the Member explained to the Owners why their documents did not establish the case they were seeking to make. Paragraphs [15], [16], [18], and [19] of the written reasons explain the grounds on which the ultimate conclusion in paragraph [20] is based. When read as a whole, we are satisfied that the Member's oral and written reasons adequately articulate the grounds on which his decision was reached. Ground 4 is not made out.

Ground 5

It is not clear whether the Owners' submission that there was no determination on the merits is part of the claimed denial of procedural fairness or a separate basis on which they contend the Member erred in law. In their submissions in reply it is put on the basis that "the failure to determine the Applicant's claim on its merits was because the Tribunal failed to exercise the jurisdiction vested in it to either adjourn the proceedings or to permit the Appellants to give oral evidence and to thereby determine the proceedings with as little formality as possible as required by section 38(2) to 38(6) of the Act". For the reasons above, we have concluded that the challenge to the Member's decisions to refuse to allow the late amendment of the claim or provision of documents, and the refusal to adjourn, has not been made out. For the reasons above, we are satisfied that the Member attempted to understand the claim the Owners were making, in discussion with them and Ms Pan. Given the inadequacies of the documents provided, the dismissal of the Owners' application was not a summary dismissal of the claim, merely a conclusion that the Owners had not discharged the onus of establishing the legal and factual basis of their claims. The Owners concede that they had not complied with the procedural directions. While the Member had an obligation under s 38(5) to take reasonably practicable measures to ensure that the parties understood the nature of the proceedings, and to ensure that the parties had a reasonable opportunity to have their submissions considered, that did not extend to making the case for the Owners. This ground is not made out.
The Owners have not established any error of law in either the conduct of the hearing or the Member's determination.

Whether leave to appeal should be granted

The Notice of Appeal does not articulate the basis on which it is said that the decision was not fair and equitable or was against the weight of the evidence, other than by referring to Grounds 1, 2 and 3. No error of law has been established in relation to any of those grounds. Whether the application for leave to appeal is based on cl 12(1)(a) or (b) of Sch 4 to the NCAT Act, Collins v Urban is authority that the Owners are required to show that they have been deprived of a significant possibility or a chance that was fairly open that a different and more favourable result would have been achieved. For the reasons above, there was no denial of procedural fairness and so it cannot be said that the decision was not fair and equitable as explained in Collins v Urban at [77]. As further explained in Collins v Urban at [77], for a decision to be said to be against the weight of evidence, the Appeal Panel would need to be satisfied that 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 member could reach. Here the Owners had not clearly articulated the basis on which their claims were made, or provided evidence to establish those claims, and there was no basis on which the Member could have found otherwise.
The Owners have not established that they may have suffered a substantial miscarriage of justice such that leave to appeal should be granted.

Conclusion

The Owners have not established an error of law, and leave to appeal is not granted. The appeal should be dismissed. The appeal not being allowed, there is no basis on which the decision of 6 February 2018 as to costs of the proceedings in HB 17/21716 should be disturbed.
The decision of the Member to order the Owners to pay the Builder's costs was made applying rule 38(2)(b) of the Rules. Accordingly, rule 38A applies to the question of costs of the appeal. The parties' representatives agreed that the question of the costs of the appeal could be addressed in written submissions without the need for further hearing. Accordingly directions are made for the parties to make their submissions as to costs.
The Appeal Panel orders: 1. Leave to appeal refused; 2. Appeal dismissed; 3. The respondent to the appeal is to provide to the appellants and the Tribunal written submissions in support of any application for costs of the appeal no later than 14 days after the date of publication of these reasons; 4. The appellants are to provide to the Tribunal and the respondent written submissions in reply no later than 14 days after the date in order (3); and 5. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 a hearing on the question of costs is dispensed with.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 24 May 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Cases Cited (22)

Cited By (3)