Long v Metromix Pty Ltd

Gen 19/25192

1. On 23 May 2019, after the Appeal Panel had made its costs decision, Ms Long lodged proceedings Gen 19/25192. The application was lodged as a renewal application under cl 8 of Schedule 4 of the NCAT Act.
2. Ms Long stated that she was seeking:

• An order for payment of $30,000;
• An order that that she did not have to pay Metromix's costs in the sum of $3,816.50 and Antoun Concrete Pumping and Mr Antoun's costs in the sum of $35,000;
• Recovery of her disbursements in the sum of $30,000.

1. In material attached to the application, Ms Long appeared to take issue with the decision made in the original proceedings, the Appeal Panel's decision in relation to that matter and the Appeal Panel's costs decisions.
2. The Tribunal identified that Ms Long was seeking to challenge the Appeal Panel's decision and on 30 May 2019 advised her that the application could not be processed as a renewal application. Ms Long was advised that if she was dissatisfied with the Appeal Panel's decision, she should obtain legal advice, including whether to appeal to the Supreme Court.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions 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 had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.
7. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal lodged on 31 May 2019;
• The Reply to Appeal lodged on 13 June 2019;
• Ms Long's written submissions lodged on 22 July 2019;
• Metromix's written submissions lodged on 19 July 2019;
• The Tribunal's decisions at first instance;
• The Appeal Panel's decision in respect of the original proceedings and the Tribunal's costs application;
• Relevant documents in Ms Long's two volume Appeal Bundle, including a transcript of the directions hearing on 30 April 2019 prepared by Ms Long; and
• The applications to the Tribunal;

1. We have not considered documents that were before the Tribunal in proceedings Gen 17/19744, or any part of the transcript of the hearing of those proceedings, which were in a bundle of documents Ms Long provided in connection with this appeal. We have not considered those documents because the Tribunal's decision in Gen 17/19744 was considered on appeal. The Tribunal's decision in that matter cannot be reconsidered in the context of this appeal.
2. In relation to the transcript, we note that Mr McKnoulty did not claim it was inaccurate. We considered the entire transcript, including that part of it which sets out a discussion between Ms Long and Mr McKnoulty which occurred in the absence of the Tribunal Member. We did so because that discussion is relevant to Ms Long's application to set aside consent orders.

Notice of Appeal

1. The Notice of Appeal was lodged on 31 May 2019. In respect of the decision in Gen 19/17520, this is outside the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). As the orders in Gen 19/17520 were made on 30 April 2019, the appeal should have been lodged by 28 May 2019.
2. The very short delay in bringing the appeal in respect of the decision in Gen 19/17520 and the lack of prejudice to Metromix are factors in support of extending time to bring the appeal. However, in view of the lack of merit of the appeal, we have decided to refuse to extend time.
3. The appeal in relation to Gen 19/25192 was lodged within time.

Grounds of Appeal

1. In relation to the grounds of appeal Ms Long states: 1. The Tribunal denied me the orders sought and were varied on appeal (Ref: AP 18/47308 Varied No.4. 2. To the Tribunal denied me the new renewal of the application made on 23 May 2019. Metromix could not carry out the rectification work comply with the rectification work ordered by the Tribunal on 15.03.2019. The contractor told me that they could not carry out the rectification work because it would make the defects more visible and worse. He said the only solution is to replace the entire slab at a cost of $100,000. 3. I agreed to the order made on 30.04.2019 to demonstrate that the slab could not have been rectified in any shape or form for the cost of $7000. 4. However the slab cannot be rectified for even $25,000 or $30,000. 5. As Metromix have been unable to comply with the orders of 15.03.2019, then Metromix should be ordered to pay the amount sought in the original application.
2. Ms Long seeks leave to appeal on the basis that the decisions were not fair and equitable, against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing.
3. In relation to decisions being "against the weight of evidence", Ms Long is apparently referring to the Tribunal's original decision in proceedings Gen 17/19744, as she refers to reports that were in evidence in those proceedings.
4. In relation to the "new evidence", Ms Long refers to Metromix's contractor having told her that the slab could not be rectified.

Issues

1. The order in Gen 19/17520 was made by consent. The issue to be determined in the appeal against that decision is whether there is any basis to set aside the consent order.
2. The decision in Gen 19/25192 was made without a hearing. The issue to be determined is whether this amounted to a denial of procedural fairness and if so, what orders should have been made in Gen 19/25192.
3. The final issue in both matters is whether there is any basis for leave to appeal to be granted.

Is there any basis to set aside consent orders in Gen 19/17520?

1. The Tribunal has the power to make orders by consent, even in the absence of the parties, upon receipt of signed terms of agreement. In relation to this, s 59 of the NCAT Act provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
2. It is not in dispute in this case that the Tribunal had the power to make a money order. It is also not in dispute that the parties had lodged signed terms of agreement with the Tribunal. As noted in Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110 at [10], a consent order is an order which is binding on the parties in the same way as a decision given after a contested hearing.
3. The principles applicable to setting aside a consent order were outlined by an Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252 (McDonald v McDonald): 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
4. At the appeal hearing, Ms Long submitted that the consent orders should be set aside because: 1. She was under duress; 2. She told the Tribunal Member that she had changed her mind about the agreement; 3. She was rushed; 4. At the end of the directions hearing she didn't think the Tribunal Member had made the orders; 5. She hadn't received legal aid; 6. She was suffering from depression; 7. The consent orders are unfair.
5. We have considered the transcript of the directions hearing on 30 April 2019 which Ms Long included in Folder 2 of her Appeal Bundle.
6. In relation to Ms Long having told the Tribunal that she had changed her mind about the agreement, the transcript indicates that at the beginning of the hearing, the Tribunal Member stated: [W]hen I read your material a couple of days ago, I thought an agreement had been reached and then I got some other materials today too that indicate that maybe you haven't ….
7. However, Ms Long responded: I wanted to see if I could have a discussion with firstly with Andrew? Just for a brief moment.
8. The reference to "Andrew" is a reference to Mr McKnoulty, Metromix's representative. The Tribunal Member agreed to Ms Long's request and left the hearing room. Ms Long and Mr McKnoulty had a discussion about settlement. Ms Long wanted Mr McKnoulty to increase the settlement sum agreed on.
9. In the course of that discussion, Ms Long said to Mr McKnoulty: Since our agreement, I've had 2 other concrete companies come out to see, the different ahem. Your contractors said and they said exactly what your contractor said; that there's no one that do that rectification application technique on that particular slab; so I've gone to 2 banks to see if I can borrow the additional amount because your contractor said its between $25,000-$30,000 and I agreed on $22,862 the only dispute is at the moment is that I can't borrow $1.00 from the bank because I'm on a pension. … So I was hoping that maybe we can discuss it with whoever you have to if you could just put it at $27,800.00.
10. Mr McKnoulty refused to make the offer sought by Ms Long, who went on to ask him if he could at least meet her "half way" at $25,000. Mr McKnoulty also refused that offer.
11. After the Tribunal Member returned to the room, the following exchange occurred: Tribunal: How did we go Ms Long? Ms Long; well were (sic) just still stuck on that; so will have to settle on that Tribunal: So, have the parties come to an agreement Mr McKnoulty: yes Tribunal: and what is the agreement Ms Long? Ms Long: the agreement is that respondents Metromix Pty Ltd will may $22.862.00… within 7 days.
12. The transcript indicates that there was further discussion in relation to settlement of an outstanding costs application, which the Tribunal encouraged. This was ultimately unsuccessful. However, there is nothing in the transcript which suggests that Ms Long did not agree to settle the renewal proceedings for the sum of $22,862. On the contrary, Ms Long specifically told the Tribunal that this is what the parties had agreed to. While Ms Long wanted to change the terms of agreement - "had changed her mind" as she submitted - it is clear from the transcript that when Mr McKnoulty declined to increase the settlement amount, Ms Long was prepared to continue with the signed terms of agreement.
13. We do not accept that Ms Long was rushed. She was given the time she sought to have a discussion with Mr McKnoulty. The transcript makes it clear that Ms Long and Mr McKnoulty had finished their discussion by the time the Tribunal Member returned to the hearing room. While the Tribunal did tell the parties towards the end of the directions hearing that she had another hearing in four minutes and needed the parties to tell her what other order they wanted her to make, this was in the context of finalising an ongoing discussion about resolving outstanding costs issues. By that stage, Ms Long had already confirmed that there was an agreement that Metromix would pay her $22,862.
14. We do not accept that at the end of the directions hearing Ms Long did not know that the Tribunal had made the order. In relation to this, we note that according to the transcript, the following exchange occurred towards the end of the directions hearing when the Tribunal Member was apparently typing the orders into the computer case management system: Member: by consent, Ms Margaret Long … is to pay Metromix the sum of $22,862.00 Ms Long: NO, Metromix is to pay me.
15. The Tribunal then evidently entered the orders correctly. We further note that during the appeal hearing Ms Long agreed that on 2 May 2019 she sent an email to Mr McKnoulty asking when Metromix would pay her. Ms Long's action in this regard supports both a conclusion that she wanted Metromix to pay her and that she knew that the Tribunal had ordered it to do so.
16. In relation to duress, Ms Long relies on report of Deborah Felman, psychologist, dated 23 June 2019, which is in Folder 2 of Ms Long's Appeal Bundle, behind Tab 4. Ms Felman was not present at the appeal hearing. Ms Felman states that Ms Long signed a consent order while she was "under duress and emotional distress". She opines that Ms Long suffers from Major Depression.
17. In our view, even accepting that Ms Long suffers from Major Depression, we do not accept that she was under duress when she signed the consent agreement or when the orders were made. First, it is clear from the material before us that Ms Long played an active part in settlement negotiations prior to the commencement of the renewal proceedings and at the directions hearing on 30 April 2019. In this regard, Ms Long lodged an application in the Tribunal seeking $20,000 based on an agreement with Metromix, subsequently negotiated a higher settlement sum and then agreed to consent orders being made in the sum agreed to. At the directions hearing, she actively sought an opportunity to have further negotiations with Mr McKnoulty and made specific settlement offers in what proved to be an unsuccessful attempt to vary the terms of agreement. Second, while the transcript indicates that Mr McKnoulty was firm in his refusal to settle for a higher amount, the material before us does not support a conclusion that Metromix placed illegitimate pressure on Ms Long such that there was no reasonable alternative but for her to submit. The amount Mr McKnoulty would not move from was an amount that Ms Long had negotiated.
18. In relation to Ms Long's submission that she hadn't received assistance from Legal Aid, it was a matter for Ms Long to obtain legal advice if she wished to do so prior to signing the agreement, lodging the renewal application or attending the directions hearing on 30 April 2019. The transcript does not suggest that Ms Long sought an adjournment at any point during the directions hearing. In circumstances where Ms Long clearly told the Tribunal what had been agreed to - that is, payment of $22,862 to her by Metromix - there was no reason for the Tribunal to offer Ms Long an adjournment.
19. As to the orders being unfair, in the Notice of Appeal Ms Long sought leave to appeal. In relation to whether the Tribunal's order was fair and equitable, it happens from time to time that a party in litigation reaches an agreement with the other party and subsequently regrets having done so. We accept that Ms Long genuinely believes that $22,862 is insufficient compensation, but in circumstances where that was the order she applied for and the order she told the Tribunal had been agreed to, there is no basis to conclude that the order was not fair and equitable.
20. The Notice of Appeal also asserted that the Tribunal's decision was against the weight of evidence. However, no evidence was tendered in the renewal proceedings, because the parties had reached an agreement on the amount to be paid by Metromix. In such circumstances, the decision could not be "against the weight of evidence".
21. The Notice of Appeal further asserted that leave to appeal should be granted because of significant new evidence that was not reasonably available at the time of the hearing. That evidence was said to be the fact that a Metromix contractor told Ms Long that he could not rectify the slab. Accepting that this occurred after the original proceedings Gen 17/19774 were determined, it clearly happened prior to the lodgement of the renewal application. It is therefore not "new evidence" for the purposes of the appeal proceedings.
22. Overall, we are not satisfied that a basis for setting aside consent orders has been established in accordance with the principles set out in McDonald v McDonald. There is no other basis on which the consent orders should be set aside. There is no basis to grant leave to appeal.
23. We have accordingly refused to extend time to appeal the consent orders made on 30 April 2019, refused leave to appeal and dismissed the appeal.

Was the correct process followed in Gen 19/25192?

1. As noted above, proceedings Gen 19/25192 was lodged as a renewal application on 23 May 2019. The application was not listed for hearing. Rather, on 30 May 2019 the Tribunal finalised the application by sending a Notice of Order which stated as follows: The Tribunal cannot process this application as a renewal application. If you are dissatisfied with the decision of the Appeal Panel, then you should obtain advice, including whether to appeal the decision to appeal the decision to the Supreme Court of New South Wales.
2. Section 50 of the NCAT Act provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
3. In this case, a hearing was not conducted. No order was made dispensing with a hearing and the parties were not given an opportunity to make submissions in relation to dispensing with a hearing.
4. In our view, the Tribunal's decision not to process the application as a renewal application was in effect a summary dismissal of the application, apparently on the basis that the Tribunal considered that the application was misconceived. We are of the view that such a decision should not have been made without a hearing, or without making an order dispensing with a hearing. If the Tribunal wished to dispense with a hearing, submissions should have been sought from the parties about both the substance of the application and the proposed order dispensing with a hearing.
5. We conclude that the dismissal of the application was a denial of procedural fairness, in relation to which Ms Long has a right of appeal.

What orders should have been made in Gen 19/25192?

1. As noted above, in the documents filed in proceedings Gen 19/25192, Ms Long appeared to take issue with the decision made by the Tribunal originally in proceedings Gen 17/19744, with the Appeal Panel's decision in respect of that decision, with the costs decisions made by the Tribunal and the Appeal Panel and with the consent orders made in Gen 17/17520.
2. Ms Long's oral submissions at the appeal hearing concerning what she was challenging in proceedings Gen 19/25192 were somewhat confused. Ms Long indicated that she had really intended to lodge an appeal against the consent order made in Gen 18/17520 and lodged the renewal application because that was the form given to her by the Tribunal. However, this is inconsistent with an email Ms Long sent to the Tribunal on 30 May 2019, after receiving the Notice of Order. A copy of the email is at Tab 9 of Folder 2 of Ms Long's Appeal Bundle. In the email, Ms Long relevantly stated: This is in correspondent (sic) with the appeal orders that were made number (4) the applicant is granted leave to renew the proceedings within 12 months of the making of the orders pursuant to schedule 4 clause 8 Of the civil and administrative tribunal and the attached description of the schedule. You have not made the correct directions today. You need to re address this application made as it is in line with the set orders. The application was made correctly and you have refused it.
3. Ms Long's submission that she was seeking to appeal the consent order made in Gen 19/17520 is also inconsistent with what she wrote in the application form which indicates that she was seeking to challenge previous decisions made by the Tribunal and by the Appeal Panel. We note also that in oral submissions during the appeal hearing, Ms Long indicated that she thought that in a renewal application her original application could in effect be heard all over again. While Ms Long's understanding in this regard is incorrect, it supports a conclusion that she was seeking to re-agitate issues that had been previously determined.
4. Renewal applications are made under cl 8 of Schedule 4 of the NCAT Act, which states: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
5. Typically, renewal proceedings in home building matters are commenced when: 1. The Tribunal has made a work order; 2. The person against whom the work order was made does not comply with the order; 3. The person in whose favour the order was made lodges an application seeking an order for payment of money equivalent to what it would cost a third party to carry out the work order.
6. While the Tribunal can make a range of orders in renewal proceedings, it cannot hear the original case all over again. If, in the substantive proceedings, the Tribunal decides that a specified scope of work is required to rectify a defect, renewal proceedings are not an opportunity to have the Tribunal hear that case all over again in the hope that the Tribunal will reach a different conclusion. Whether the Tribunal's original decision to make a work order is correct is a matter to be agitated in appeal proceedings.
7. In our view, proceedings Gen 19/25192 were not properly characterised as a renewal application under cl 8 of Schedule 4 of the NCAT Act.
8. First, as noted above, on a renewal application the Tribunal could not re-determine the original Tribunal proceedings, Gen 17/19744. Those proceedings had been subject to an appeal, both in relation to the substantive and the costs orders. The Appeal Panel had made an order for costs of the appeal proceedings. That decision could also not be re-considered in the context of a renewal application.
9. Second, proceedings Gen 17/19744 had already been renewed in the context of proceedings Gen 19/17520. A money order was made by consent which compensated Ms Long for Metromix's failure to comply with the work order made in Gen 17/19744, as varied by the Appeal Panel. In these circumstances there was nothing to renew.
10. We have considered whether proceedings Gen 17/25192 could be characterised as "misconceived" for the purposes of summary dismissal under s 55(1)(b) of the NCAT Act. In relation to this, in Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) considered the meaning of the meaning of "misconceived" in equivalent provision to s 55(1)(b) in the Administrative Decisions Tribunal Act 1977. He stated at [25] to [26]: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
11. In our view, proceedings Gen 19/25192 demonstrate a misunderstanding of the principles that apply to applications under cl 8 of Schedule 4 of the NCAT Act. The proceedings did not disclose a proper cause of action under cl 8 of Schedule 4. First, to the extent that Ms Long disagreed with the Tribunal's original decision, she had exercised a right of appeal to the Appeal Panel. Second, to the extent that she disagreed with the Appeal Panel's decisions either in relation to the substance of the dispute or in relation to costs, the proper remedy was an application for leave to appeal to the Supreme Court. Third, Ms Long had already availed herself of the opportunity to make an application under cl 8 of Schedule 4 and had settled those proceedings. To the extent that she sought to overturn the consent order, the appropriate action was an appeal rather than a renewal application and that issue has been determined above.
12. We conclude that proceedings Gen 19/25192 were misconceived.
13. Accordingly, while we have found that the proper process was not followed in determining proceedings Gen 19/25192, we conclude that if that matter had been heard, the result would have been the same. We note Gleeson CJ's observation in In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
14. In Stead v State Government Insurance Commission (1986) 161 CLR 141, the plurality stated at [11]: [N]ot every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
15. In our view, it would be futile to remit proceedings Gen 18/25192 to the Tribunal for rehearing. The outcome would be the same, as the application is not properly an application to renew proceedings under cl 8 of Schedule 4 of the NCAT Act.

Conclusion

1. In relation to proceedings Gen 19/17520, we have concluded that there is no basis on which to set aside consent orders.
2. In relation to proceedings Gen 19/25192, we have concluded that the proceedings were misconceived and that remitting the matter to be heard by the Tribunal would be futile.
3. In neither case has any basis for leave to appeal been established in accordance with the principles articulated in Collins v Urban.

Orders 1. An extension of time in which to appeal Gen 19/17520 is refused. 2. Leave to appeal against the decisions made in Gen 10/17520 and Gen19/25192 is refused. 3. The appeals are dismissed.

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. 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: 06 August 2019