These proceedings are an appeal from a decision of the Consumer and Commercial Division in application GEN 17/19744.
On 30 October 2018 the Tribunal made orders relieving the appellant from an obligation to pay the second and third respondents the sum of $6700 and requiring the first respondent to carry out various rectification work to the driveway. Otherwise, the Tribunal dismissed the appellant's claim. The Tribunal published written reasons for decision (Reasons). Subsequently the Tribunal made orders for costs and published reasons on 3 December 2018 (Costs Decision).
The original dispute concerned the supply of concrete and it used to construct a driveway at premises owned by the appellant. The first respondent was the supplier of the concrete. The second and third respondents were, respectively, a company that provided concrete pumping services for the driveway concrete and a director of that company. The claim against the first respondent was said to be a consumer claim brought under the Fair Trading Act, 1987 (NSW) (FT Act). That claim was limited to $40,000 being the jurisdictional limit of the Tribunal for claims under the FT Act: see Reasons at [47]. The claim against the second and third respondents was said to be brought under the Home Building Act, 1989 (NSW). The claim against the second and third respondents was said in excess of $200,000: see Reasons at [22].
The substance of the decision was that none of the respondents contracted with the appellant. However, the Tribunal found that the first respondent had supplied concrete in batches which were "noticeably different colours for incorporation into one job" and, consequently, there had been a breach by the first respondent of the consumer guarantee under s 54 of the Australian Consumer Law (NSW) (ACL) because the goods were not acceptable quality. Having rejected the appellant's claim that it was necessary to remove and replace the concrete, the Tribunal made a conditional order to recolour and reseal the driveway.
As is apparent from the Reasons, this claim was heard over 3 days, multiple witnesses gave evidence and there were significant issues of credit involved. The appellant represented herself at the original hearing. It would seem an employee from the first respondent appeared on its behalf, the second and third respondents being represented by Counsel.
Amongst other grounds, by her Notice of Appeal the appellant seeks leave to appeal because the decision was not fair and equitable or was against the weight of evidence. In this regard the appellant asserts the Tribunal ignored evidence, failed to have regard to particular evidence, did not allow cross examination by the appellant of the respondents and that the "respondents have legal leverage and [the appellant] was unrepresented with very limited legal background and knowledge and [was] at a disadvantage".
The appeal was listed for directions on 13 November 2018. On that day the Appeal Panel made directions to prepare the appeal for hearing and fixed a hearing date.
The unresolved issue was whether the respondents should have leave to be legally represented. The appellant opposed such order or, alternatively, said it should be made on terms.
Directions were made for submissions on this topic. The parties each provided submissions.
These reasons relate to the decision on the issue of legal representation.
[2]
Consideration
Section 45 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act provides that a party has the carriage of their own matter. However, pursuant to s 45(2) of the NCAT Act, the Tribunal may give leave to a party to be legally represented. These provisions applied to appeals as well as proceedings at first instance, there being no special provision in any relevant schedule of the NCAT Act altering this position.
Each of the respondents seeks such leave.
The first question to address is whether an order should be made under s 50(2) of the NCAT Act dispensing with a hearing. The parties were invited to make submissions on this topic. No party has offered any cogent reason why an order dispensing with a hearing should not be made. Further, having regard to the issues to be determined and the fact that the parties have had an adequate opportunity to provide written submissions, I am satisfied such an order should be made.
The substantive question is whether leave should be granted
In Rodny v Stricke [2018] NSWCATAP 136, the Appeal Panel considered the principles applicable to the grant of leave. At [78]-[88], the Appeal Panel said:
Relevant principles regarding representation
78 Section 45 of the NCAT Act provides as follows:
45 Representation of parties
(1) A party to proceedings in the Tribunal:
(a) has the carriage of the party's own case and is not entitled to be represented by any person, and
(b) may be represented by another person only if the Tribunal grants leave:
(i) for that person to represent the party, or
(ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.
(2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made.
(3) The Tribunal may at its discretion:
(a) grant or refuse leave under subsection (1) (b), and
(b) revoke any leave that it has granted.
79. The other subsections of s 45 are not presently relevant.
80. The section does not define the circumstances when leave may be granted. Rather, there is a general discretion to grant or refuse leave and/or to revoke leave if it has been granted. That grant can be on conditions: see r 31 of the Rules.
81. Some assistance in determining what matters are relevant in deciding whether or not leave should be granted is to be found in Div 2 of the Rules. This Division contains rr 31-33. It is appropriate to set out the Division in full.
Division 2 Representation of parties
31 Application for leave to represent a party
(1) An application by a person under section 45 of the Act for leave to represent a party to proceedings may be made orally or in writing at any stage in the proceedings.
(2) In making an order granting leave to a person to represent a party to proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit.
32 Granting and revocation of leave for a person to represent party
(1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to:
(a) such of the following circumstances as it considers are relevant to the proceedings:
(i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal,
(ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings,
(iii) whether the proposed representative is vested with sufficient authority to bind the party, and
(b) any other circumstances that it considers relevant.
(2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that:
(a) the party no longer consents to the person representing the party, or
(b) the person applied for leave to represent that party without the consent of the party, or
(c) the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party's representative, or
(d) the party is, or has become, incapable of instructing the representative, or
(e) any other grounds are present that the Tribunal considers sufficient to justify the revocation.
33 Costs of representation may be disclosed
Without limiting rule 31 (2), the Tribunal may, as a condition of an order granting leave to a person (including an Australian legal practitioner) to represent a party to proceedings, require the person to disclose the estimated cost of representation by the person.
82. In addition to these matters, and without seeking to define all factors that might be relevant to consider in an application to be represented, s 3 (Objects of Act), s 36 (Guiding principle to be applied to practice and procedure) and s 38 (Procedure of the Tribunal generally) are also relevant.
83. In this regard, the Tribunal:
(1) may determine its own procedures for which the NCAT Act and the Rules does not otherwise make provision: (s 38(1));
(2) is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38(2)); and
(3) is to take such measures as are reasonably practicable to ensure that the parties to the proceedings understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise to have their submissions considered (s 38(5)).
84. Overarching these considerations is the obligation on the Tribunal to implement the guiding principle, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings (ss 3 and 36(1)), a matter about which all parties and their representatives have a duty of co-operation (s 36(3)).
85. As can be seen from the above, in respect of an application for representation, the Tribunal is to consider whether an order for representation should be made, who should be appointed and what, if any, conditions should be imposed.
86. The starting point is that there is no right to representation generally in the Consumer and Commercial Division. While there was previously a right of appearance for lawyers under the 1996 Act, these provisions were repealed so that the general requirements of s 45 of the NCAT Act apply to proceedings under the SSMA. This is different to the position which applies to legal practitioners in respect of court proceedings. Rather, a party seeking leave must demonstrate that there are circumstances which justify the grant of leave and the Tribunal must be satisfied that it is appropriate to do so.
87. In connection with an application to be represented by an Australian legal practitioner, it is not mandatory on the Tribunal to have regard to the circumstances prescribed in r 32(1) in determining whether or not to grant leave: see introductory words to r 32(1) - "other than an Australian legal practitioner". This is hardly surprising having regard to the obligations of an Australian legal practitioner arising from the duty to the court or tribunal and the fact that potential representatives who are not lawyers are not bound by similar obligations. However, those circumstances, if raised by the parties and relevant to a determination of an application for leave to be represented by an Australian Legal practitioner, may still be considered in exercising a discretion about whether or not to grant leave.
88. Other considerations that may be relevant include:
(1) the complexity of the issues raised for determination;
(2) the capacity of the individual seeking leave to be represented to understand and effectively participate in the proceedings in a manner which allows them a reasonable opportunity to be heard;
(3) the need to ensure that there is no material imbalance between the parties,
(4) the need to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and
(5) whether it is appropriate in all the circumstances to give leave to a particular person, including an Australian legal practitioner.
The first respondent sought leave to be legally represented having regard to the complex legal arguments and the detailed evidence that was required to be understood. It's Operations Manager, Mr McKnoulty, who had apparently represented the first respondent at the original hearing said "I don't feel that I can adequately represent [the respondent's] best interest without legal representation".
The second and third respondents, through their lawyers Paramonte Legal, submitted:
1. The claims by the appellant exceeds $30,000. While the appellant represented at the directions hearing her claim on appeal would be limited to $40,000, at the original hearing she was seeking between $223,000 and $273,000.
2. The respondent, Mr Antoun, has a limited comprehension of written English, and the documents presented in this case are "already … hundreds of pages of submissions in respect of the Appeal".
3. The issues are reasonably complex, factual issues arising from the volume of material filed by the appellant and a multitude of allegations made.
4. Leave was previously granted to the second and third respondents to be legally represented at the proceedings at first instance. In this regard the second and third respondents referred to a decision of the Tribunal granting legal representation in the proceedings at first instance made 27 July 2017.
In reply, the appellant's submissions dated 14 November 2018 included that:
1. The appellant was unable to afford legal representation.
2. She was going to "seek to amend [her] application for $30,000 only not to exceed the jurisdiction for legal representation cost".
3. The third respondent, Mr Antoun, will not be placed at a disadvantage Rather, it was the appellant who had been placed at a disadvantage by the conduct of Mr Antoun and/or his company.
4. The case "is a matter of principle now; not only for negligent but concrete contractor should not be able to cause a miscarriage of justice and get away with it". In this regard allegations of dishonesty are made in documents attached to the submissions. For example the appellant says (on a submission marked page 2):
I should not have fallen for his lies the rumours he was spreading on me, to show him I had paid everyone in cash the only thing I did not pay was for the defective wrong concrete mix supply $4500 but he demanded $6700 in cash other than the $878 and not $5200 total.
Concrete contractor Chady Antoun, mislead (sic) the NCAT Tribunal and his lawyer and in these proceedings as a miscarriage of justice and the member believed a liar and not the person telling the truth the [appellant].
1. Any grant of leave for legal representation should be conditioned on the parties not being entitled to legal costs.
There was a further directions hearing on 17 December 2018. At the directions hearing the appellant indicated she wished to also appeal the Costs Decision which was given subsequent to the appeal being commenced. Leave was given to permit the Notice of Appeal to be amended to challenge the Cost Decision, the success of which appeal will, in part, depend upon the success of her primary claims. On 19 December 2018 the appellant filed further documents (in excess of 100 pages) in relation to amendment of her Notice of Appeal.
Prior to doing so, but after the directions hearing on 17 December 2018 and well after the time given to file submissions on the issue of leave for legal representation (which were due on 14 November 2018), the appellant also provided voluminous further emails and attachments which included the following:
1. email dated 17 December 2018 sent at 8:33 pm;
2. email dated 17 December 2018 sent 8:37 pm;
3. email dated 18 December 2018 sent at 6:05 am;
4. email dated 19 December 2018 sent at 3:01 pm : and
I do not propose to set out in detail the contents of all these documents. It is sufficient to record they are prolix, seek to agitate arguments concerning factual matters about which there is a dispute in the appeal and make multiple allegations of misconduct. In addition, claims are made by the appellant that she has incurred significant costs in seeking to prosecuted claims. These submissions have been put forward to justify her submission that she will be disadvantaged.
In my view, the allegations which are made concerning the conduct of the parties, including dishonesty of witnesses at the original hearing are serious matters. The manner in which the appeal is presented is difficult to understand. On its face, the appeal and the documents provided by the appellant obscure the real issues in dispute. These issues appear to be:
1. what were the legal obligations owed by the respondents to the appellant (if any);
2. was there a contract between the appellant and either or all of the respondents,
3. was the Tribunal correct in its assessment of the witnesses and its consideration of the evidence and was the Tribunal correct in making the orders which it finally did having regard to the findings of fact which it made.
4. Was the appellant in in any relevant sense denied procedural fairness, including in respect of cross-examination of witnesses.
Whether or not this assessment of the claim being brought on appeal is correct, in my opinion the circumstances of this case justify the grant of leave to the respondents to be legally represented.
The reasons for this view include the following:
1. the first respondent, Metromix, is a company that requires somebody to represented at the hearing of the appeal, as is the second respondent;
2. the third respondent does not have a good comprehension of English;
3. there are serious allegations of dishonesty arising from the evidence of witnesses at first instance;
4. the appellant's claims are difficult to understand and challenge findings of fact arising from evidence given over 3 days of hearing; and
5. the second and third respondents were, in any event, represented by lawyers at the original hearing.
While the appellant says she now seeks to limit her claim to $30,000 only and she is otherwise disadvantage, being a pensioner unable to afford legal advice, the grant of legal representation will not, of itself, lead to any relevant disadvantage in the present case. Rather, in my view, having regard to the issues which I have identified and the reasons of the Tribunal at first instance, both the parties and the Tribunal may be assisted if legal representatives are able to bring some focus or clarity to the real issues to be resolved.
Accordingly, I will make an order that all parties may be legally represented. In this way all parties may avail themselves of an opportunity to present their cases with the assistance of a legal representative.
The appellant says that any order for legal representation should be made on condition that no costs may be claimed by a person who is legally represented. The appellant says she wishes to limit her claim on appeal to $30,000. However, I am not satisfied that this proposal, in the context of the allegations made, justifies the imposition of a condition. Rather, any issues that arise in connection with the appellant limiting her claim can be addressed by the Appeal Panel if an application for costs is made by any party at the conclusion of the proceedings.
[3]
Orders
The Appeal Panel makes the following orders:
1. A hearing of the application for legal representation is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.
2. Leave is granted to all parties to be legally represented.
[4]
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: 02 January 2019