The appellant appeals from a decision of the Tribunal ordering it to pay the respondents $262,750.47 for delayed, defective and incomplete residential building work.
Five grounds of appeal were pressed. Four involve differing assertions to the effect that the appellant was denied an opportunity to properly put its case to the Tribunal. Those four grounds, in substance, all relate to the Tribunal's refusal to admit the appellant's expert's report into evidence or to adjourn the proceedings to another date when it would be admitted. The fifth ground of appeal relates to the Tribunal's decision to make a money order in favour of the respondents in preference to an order that the appellant rectify the work.
For the reasons that follow we are of the opinion that the appeal should be dismissed.
[2]
Background
Some background is necessary.
The appellant and respondents entered into a written fixed-price home building contract dated 27 October 2015 (the "Contract") for the demolition and construction of a residence at Cronulla. The contract price was $780,000.
The respondents sought and obtained loan finance from the National Australia Bank (the "construction loan") to fund those works. The construction loan was for approximately $700,000 and was secured by a registered mortgage over the land where the residence was to be built.
Work commenced on 18 December 2015. The work was due for completion under the terms of the Contract by approximately the end of June 2016.
The Tribunal found that the work was not completed, whether by June 2016 or at all. The Tribunal found that the appellant was last on site in August 2017 and did not return to the site thereafter notwithstanding the work was incomplete.
The respondents commenced proceedings against the appellant in the Tribunal on 1 June 2018.
On 6 July 2018 the Tribunal directed the respondents to file and serve upon the appellant the documents upon which they relied in their case against it. An extension of time to comply with that direction was subsequently sought by them and granted. The respondents complied with that extended direction.
The appellant retained solicitors to act for it in mid-July 2018.
On 29 August 2018 the Tribunal held a further directions hearing. At that directions hearing the Tribunal directed the respondents to file and serve a Scott Schedule, and any additional statements, reports or other documents upon which they intended to rely, by 26 September. It appears that the respondents complied with this direction.
The appellant was directed to file and serve points of defence, a response to the Scott Schedule and all statements, reports and other documents upon which it relied, on or before 24 October.
Direction no.10 made by the Tribunal on 29 August was that:
"If a party relies on the evidence of a lay or expert witness in support of their claim, that lay or expert witness ... must be available at the final hearing to give evidence and be cross examined by the other party unless otherwise directed by the Tribunal."
The Tribunal never "otherwise directed".
Direction 11 made that day stated that at the next directions hearing the parties would be expected to be in a position to inform the Tribunal about the ambit of the remaining issues in dispute, any further directions that might be required to enable all matters in dispute to proceed to a formal hearing, the number of lay and expert witnesses to be called in their respective cases, the witnesses to be cross-examined, any unavailable dates of the parties and their experts and a realistic estimate of the likely hearing time required.
Subsequent to that directions hearing, the appellant sought and was granted an extension of time to comply with the directions in relation to the filing and service of its evidence (see [13] above). That application was granted, and time was extended to 5 November 2018.
On 7 November 2018 a further directions hearing was held. The respondents appeared but there was no appearance on behalf of the appellant. No explanation was provided to the Tribunal for this non-appearance.
At this directions hearing the respondents sought an expedited hearing because they had received a Default Notice dated 25 October 2018 from the NAB which related to their construction loan. The Notice stated that the respondents had defaulted under the terms of their construction loan by failing to complete the construction of the residence within 12 months and that the respondents were required to repay the total loan balance within 31 days from the date of the Notice (being 26 November 2018). The loan balance as at the date of the Notice was stated to be $704,229.20. The Notice stated that should the loan balance not be repaid as required, enforcement action might be taken by the NAB, including the taking of possession of the property.
The Tribunal noted that the respondents had filed and served all of the evidence upon which they relied. The Tribunal noted that the appellant had not (without explanation) filed or served any evidence upon which it relied.
No formal order was made for expedition. The Tribunal simply made an order that the matter was adjourned to a date to be fixed by the Registrar. A Notice of Order dated 7 November 2018 which set out the Tribunal's directions made that day was emailed by the Tribunal to the appellant's solicitor.
The following day, the appellant served on the respondents and attempted to file with the Tribunal an expert's report authored by Mr D Moloney dated 31 October 2018.
On 9 November 2018 the Tribunal sent a notice to the parties notifying them that the hearing of the matter would take place on 20 November 2018.
No application for adjournment of that date was made by the appellant prior to 20 November 2018, nor did the appellant raise any issue with that date with the Tribunal or the respondents until the day of that hearing.
At the hearing on 20 November 2018 both parties appeared, the appellant being represented by its solicitors.
The appellant informed the Tribunal that it was not ready to proceed with the hearing because the appellant was late in obtaining its expert report. Inferentially this included that the appellant had been late in serving its expert report.
The late service of Mr Moloney's report did not trouble the Tribunal as, after confirming that the report had been served on the respondents on 8 November, the Tribunal asked the parties why the matter could not proceed (transcript 21:02).
The appellant then submitted that the matter could not proceed (and an adjournment was warranted) because:
1. there was no joint report by the experts;
2. there were a few issues Mr Moloney wanted to discuss with the appellant's solicitor (and there had been no opportunity for Mr Moloney to call the appellant's solicitor and to meet with him and his client); [1]
3. Mr Moloney was not available to attend the hearing and give evidence; and
4. the appellant required more time to investigate whether the respondents had mitigated their loss.
No evidence was provided to the Tribunal by the appellant in support of the adjournment application. There was no evidence why Mr Moloney was not available to attend and give evidence notwithstanding the Tribunal's direction no.10 made on 29 August (see [14] above).
The Tribunal refused the adjournment application. The Tribunal said that there was no evidence why the appellant had failed to comply with the Tribunal's directions in relation to the filing and service (in time) of the expert evidence and no evidence why Mr Moloney was not available. The Tribunal noted that the respondents were ready to proceed, and that the time given for the respondents to pay the NAB pursuant to the NAB's Default Notice was imminent (being 26 November 2018) and it would be "the greatest injustice" if an adjournment were granted in view of the respondents' circumstances (being a reference to the Default Notice).
The Tribunal ruled that the interests of justice required the hearing to proceed and refused the application for adjournment noting that if the matter did not proceed that day another hearing date could not be obtained until at least February or March 2019.
The appellant then sought to tender Mr Moloney's report. The Tribunal said that because Mr Moloney was not available to give evidence and be cross-examined his report would be of no weight or benefit. On that basis the Tribunal refused to admit Mr Moloney's report into evidence.
The first respondent gave evidence and was cross-examined. The respondents' expert, Mr Capaldi, gave oral evidence and was cross-examined on the two reports authored by him and served in the proceedings.
After the evidence was complete the parties made their submissions.
In its submissions the appellant submitted that it did not take issue with the (defective and incomplete) items listed by Mr Capaldi in his reports, it only took issue with the amount claimed to repair and complete them. The appellant also submitted that the Tribunal should make a work order rather than a money order in relation to those items.
The Tribunal gave its decision in writing later that same day.
The Tribunal found in favour of the respondents. In broad terms the Tribunal accepted the evidence of the first respondent and accepted Mr Capaldi's evidence that the items he identified were defective and incomplete as described by him, and that his estimated cost of repairs / completion costs was reasonable.
The appellant appealed.
On 15 January 2019 a directions hearing was held in relation to the appeal.
The appellant was directed to lodge with the Tribunal and serve upon the respondents by 28 March 2019 all the evidence provided to the Tribunal below on which it intended to rely, any fresh evidence upon which it intended to seek leave to rely upon in its appeal, the appellant's written submissions in support of the appeal, the sound recording of the hearing if what happened at the hearing was intended to be relied upon and a typed copy of the relevant parts of the sound recording.
Directions to similar effect were made in relation to the respondents, the relevant date for their compliance being 25 April 2019.
The appellant was granted leave to file an Amended Notice of Appeal by 15 February 2019.
A directions hearing was held on 14 March 2019. The dates for each party's compliance with the directions made on 15 January were extended to 14 April and 18 April 2019 respectively, and the appeal was fixed for hearing on 23 April 2019.
The respondents complied with the directions applying to them.
The appellant did not comply with the directions applying to it.
It sought to do so on the day of the appeal. Most relevantly it sought to lodge with the Tribunal and serve on the respondents its written submissions and a signed statement of Mr Andrew Gayed dated 18 April 2019. It also sought to file its Amended Notice of Appeal which had been required to have been filed by 15 February but was not served upon the respondents until 17 April 2019.
The submissions and statement referred to above were part of a folder of documents which included various other non-contentious documents such as the Tribunal's decision below, Notice of Appeal and like documents. That folder was received by us (and marked Ex 1) for the purpose of assessing the appellant's various applications to which we will come.
[3]
Time and Leave to Appeal
The Tribunal made its final orders on 20 November 2018. Notice of those orders was received by the appellant on 21 November 2018.
The appellant desires to appeal both from the final orders and the interlocutory orders made on 7 November 2018.
The time in which a Notice of Appeal must be lodged is 28 days from the date reasons are given or an appellant is notified of the decision, whichever is the latter. [2] The first day (the day an appellant is notified) does not count in the reckoning of time. [3]
The appellant lodged a single copy of its Notice of Appeal on 18 December 2018. Further copies were lodged with the Tribunal on 20 December. The 20th of December is the 28th day after the day the appellant was notified of the Tribunal's final decision (taking into account the first day does not count in the reckoning of time). Accordingly, the Notice of Appeal is within time in relation to the appeal from the Tribunal's final decision.
None of the grounds of appeal from the Tribunal's final orders ultimately advanced involve a question of law. Accordingly, the appellant requires and seeks leave to appeal on those other grounds.
Appeals from the Tribunal's interlocutory orders are by leave - s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (the "NCAT Act"). Notice of the interlocutory orders made on 7 November were received by the appellant on that same date, some 42 days before the Notice of Appeal was lodged.
Therefore, in relation to the appellant's desire to appeal from the Tribunal's interlocutory orders made on 7 November 2018, the appellant requires both an extension of time to appeal as well as leave to appeal.
[4]
Time to Appeal
As the matters involved with the appeal from the Tribunal's decision refusing the appellant's application for an adjournment on the day of hearing are closely interwoven with and inextricably intertwined with what occurred, and the orders made, on 7 November 2018, it is appropriate to extend time for the appeal from those orders made on 7 November 2018.
[5]
Amended Grounds of Appeal
The appellant sought leave to file its Amended Notice of Appeal on the day of the hearing of the appeal. The application was opposed.
The only amendment sought was to Ground 7.
The original Ground 7 (which was identical to Ground 6) stated:
"The presiding Tribunal member incorrectly concluded that the only available remedy was a money order."
The appellant sought to delete that ground and substitute it with the following:
"The presiding Tribunal member incorrectly determined it was in the interests of justice to proceed with the hearing."
In substance, this new ground is the same as Ground 3 although differently expressed. Ground 3 states:
"The presiding Tribunal member did not vacate the hearing and allocate a new hearing date."
Appeals are from orders and not from the reasons for those orders. The relevant order was the refusal of the appellant's adjournment application. Ground 3 speaks to that subject matter of the order whilst the new Ground 7 speaks to the reasons underlying that order. In either case, issue is taken with the order refusing the adjournment.
In our opinion no new issue of any substance is raised by allowing the amendment sought and no prejudice is occasioned to the respondents by allowing the amendment.
Therefore, we grant leave to the appellant to lodge with the Tribunal an Amended Notice of Appeal containing a new Annexure A (which sets out the grounds of appeal) in the form set out in Tab 2 of Exhibit 1 on the appeal.
[6]
Fresh Evidence
As noted at [40], [43] and [45] above, the appellant had been directed by the Appeal Panel to serve any fresh evidence upon which it intended to seek leave to rely upon in its appeal by 14 April 2019. It did not do so by that date. Rather, it served "fresh evidence" upon which it intended to seek leave to rely upon in its appeal (being a statement of Mr Gayed dated 18 April 2019) on the first respondent on the day of the hearing of the appeal.
We rejected the tender of this statement on the appeal. It is convenient to immediately set out our reasons for doing so.
The substance of the statement was divided into three parts identified as Parts A, B and C.
Part A concerned non-contentious background facts admitted, agreed or determined by the Tribunal. Thus, Part A is irrelevant and was rejected.
Part B goes to the subject matter of the appellant's building licence. This subject arose because the Tribunal found that the appellant was not licensed to undertake residential building work (which was the type of work to be undertaken under the Contract). Part B contains evidence which, the appellant contends, would establish that the appellant was, contrary to the Tribunal's finding, appropriately licensed.
We rejected the tender of Part B for two reasons.
First, the appellant's non-compliance with the Appeal Panel's directions in relation to the service of this evidence, and service of it upon the first respondent only on the day of the hearing of the appeal, deprived the respondents of any opportunity to investigate the factual assertions relied upon and gather any contrary material (if any) to tender in opposition to the appellant's case on this subject.
Second, although the Tribunal did make a finding that the appellant was unlicensed, that fact is not an element of the cause of action upon which the respondents succeeded and thus irrelevant to it and irrelevant to the appeal.
The cause of action relied upon by the respondents was in contract. The appellant had contracted to build certain works, according to certain plans, to a certain standard and by a certain time. It did not construct those works according to those plans, standard or time. It is in relation to those breaches, and the damage flowing therefrom, that the orders in favour of the respondents were made. Put another way, even had the appellant been licenced, the same orders would have been made. In that sense the evidence contained in Part B is irrelevant.
Part C contains Mr Gayed's evidence of the circumstances surrounding the obtaining of Mr Moloney's report (although the explanation is, on its face, less than fulsome), some evidence concerning the directions hearing on 7 November 2018, the listing of the matter for hearing, and evidence as to why Mr Moloney did not attend the hearing on 20 November.
We rejected the tender of Part C for two reasons.
First, admitting it would give rise to procedural unfairness to the respondents given the statement's late service. To admit that material would be to deprive the respondents of the opportunity to investigate and gather evidence on the factual matters asserted (cf [69] above).
Second, we were not satisfied that this evidence was "significant new evidence" that "was not reasonably available" at the hearing below per clause 12(1)(c) of Schedule 4 of the NCAT Act. The contents of Part C are wholly made up of documents available to Mr Gayed at the time of the hearing and to his state of knowledge. Mr Gayed was present at the hearing below. Thus, this evidence was reasonably available to the appellant at the time of the hearing below.
[7]
Grounds of Appeal
In light of our ruling rejecting the tender of Mr Gayed's statement the appellant abandoned Grounds 4 and 5 of the Amended Notice of Appeal. It was proper to do so.
That left for determination the following grounds (which we have numbered 1 - 5 for convenience):
1. The Tribunal made orders on 7 November 2018 in the absence of the Respondent (this is obviously an error and should be read as a reference to the appellant).
2. The presiding Tribunal member denied the Respondent (read appellant) the right to rely on its lay and expert evidence, including dealing with the quantification of damages sought.
3. The presiding Tribunal member did not vacate the hearing and allocate a new hearing date.
4. The presiding Tribunal member incorrectly concluded that the only available remedy was a money order.
5. The presiding Tribunal member incorrectly determined it was in the interests of justice to proceed with the hearing.
[8]
The Hearing of the Appeal
As noted at [39] - [47] above, the appellant failed to comply with the Appeal Panel's directions for the lodgement and service of submissions and the other material identified until the day of the hearing of the appeal.
No affidavit or other evidence was read or tendered on the appeal explaining this non-compliance.
This gave rise to the risk of procedural unfairness to the unrepresented respondents in that they were not given a reasonable opportunity to understand (from the appellant's submissions) and prepare for what arguments would be raised in support of the appeal.
The appellant submitted that no prejudice would arise because the written submissions did nothing more than better articulate the grounds of appeal and provide some cross-referencing. In that way, it was submitted, the respondents could not be taken by surprise.
Although we were not persuaded that this was so (the submissions extend for 59 paragraphs over 10 pages with 27 footnotes), we proceeded to hear the appellant's submissions.
Having heard those submissions, and with the appellant's counsel having put everything that could reasonably and legitimately be put in support of the appellant's case, we were of the opinion that the appeal should be dismissed. Accordingly, no procedural unfairness to the respondents arose from the late service of the written submissions, and the oral submissions delivered in furtherance of them.
[9]
Principles
Ground 1 required leave to appeal because it was from an interlocutory decision of the Tribunal. Grounds 2 - 5 required leave to appeal, so submitted the appellant, because none of those grounds concerned a question of law - cf s 80(2)(b) of the NCAT Act.
The appellant submitted that in relation to each ground of appeal the Tribunal's decision was not fair and equitable, referring to clause 12(1)(a) of Schedule 4 of the NCAT Act.
Clause 12(1)(a) states:
(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only 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 ...
This clause was given careful attention in Collins v Urban [2014] NSWCATAP 17, a decision routinely applied by Appeal Panels in the Tribunal including the three authorities to which the appellant drew our particular attention, namely Claydon v NSW Land and Housing Corporation [2015] NSWCATAP 192, Henry v Management Business Services Pty Ltd [2017] NSWCATAP 55 and Brett v Rowland [2017] NSWCATAP 73.
Relevantly, the granting of leave involves two stages. First, the appellant is required to establish that it may have suffered a substantial miscarriage of justice. In this case the reason advanced is because the decision at first instance was not fair or equitable. On this first stage the appellant must demonstrate that there was a significant possibility, or a chance which was fairly open, that a different and more favourable result would have been achieved had that which was not fair or equitable not occurred.
If satisfied that the appellant may have suffered a substantial miscarriage of justice, the second stage involves an Appeal Panel considering whether, in the exercise of its discretion, leave to appeal should be granted.
Collins is authority for the proposition that that discretion is to be exercised consistently with the same principles as are applied by courts when considering the granting of leave to appeal summarised in BHP Billiton Ltd v Dunning [2013] NSWCA 421 (Collins at [82]) and, in addition, the principles set out in a number of other cases.
In BHP Gleeson JA, with whom Macfarlan JA and Young AJA agreed, said (citations omitted):
"[19] In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at ...
[20] Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable ...
[21] Further, in relation to a matter involving one of practice and procedure, the application for leave is to be approached with the restraint applied by an appellate court when reviewing such decisions ..."
The Appeal Panel in Collins, at [84], went on to say that, in addition to the matters set out in BHP which we have quoted above, ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. an error that is plain and readily apparent and which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
2. a factual error that was unreasonably arrived at and clearly mistaken; or
3. 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.
The Appeal Panel in Collins also said, at [79], that (citations omitted):
"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 because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), 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 ..."
[10]
Grounds 1, 2, 3 and 5
As these grounds are closely related and overlap, they will be considered together.
The appellant submitted that the matters referred to in direction 11 made on 29 August 2018 (see [16] above) should have been, but were not, traversed or taken into account at the directions hearing on 7 November with the appellant's "consult". That might be so, but the appellant did not appear at the directions hearing to be consulted and made no complaint about not being consulted on 7 November when the appellant appeared at the hearing on 20 November.
The appellant submitted that it was not aware of the listing on 7 November 2018. No assertion to that effect was made to the Tribunal below and no evidence supporting it was led. Ordinarily it is not appropriate to allow a point to be taken for the first time on appeal, all the more so when the matter involves questions of practice and procedure and especially where the respondent may have led evidence on the matter.
In the absence of an appearance by the appellant, an absence unexplained by evidence, the Tribunal was entitled to infer that the appellant was content to proceed with the case solely on the evidence served by the respondents.
The appellant submitted that had it attended the listing on 7 November 2018, it would have sought various directions for the service of evidence in support of its case, the taking place of a conclave of experts and for the parties to consult with each other to agree on a range of dates suitable to each party and their experts.
As we have noted, the appellant did not complain below that it was unaware of the 7 November directions hearing. It had already been directed to serve its evidence and had sought and received an extension of time to do so. It never served any lay evidence. It served its expert report on 8 November. The Tribunal made clear at transcript 20:46 - 21:02 that late service of that report was not a reason why the matter could not proceed. Similarly for the absence of a conclave of the experts. Although a preferred course, the absence of a conclave would not have prevented the matter proceeding, the experts could have been given some brief time at the hearing to conclave or they could have given their evidence concurrently.
The appellant submitted that the Default Notice issued by the NAB was an insufficient basis for the Tribunal to grant expedition on 7 November, especially in circumstances where no evidence had been served by the appellant, no conclave of experts had been ordered and the matters set out in direction 11 made on 29 August had not been "explored in consultation with" the appellant.
We do not agree. Whilst the NAB Default Notice did speak of what the NAB might (rather than would) do, it does not seem to us that there was any error in the Tribunal taking that possibility of severe action into account and directing the matter proceed to the Registrar for the fixing of a hearing date. It was the possibility of severe action by the NAB which exercised the Tribunal's mind (and correctly so in our opinion), not the certainty of such action.
The respondents had complied with the Tribunal's directions. They had received notice that the NAB might soon take enforcement action of a severe kind against them, the appellant had served no evidence and the Tribunal had an obligation to provide a quick, cheap and just resolution of the parties' disputes.
Even if there were some injustice in the matter being set down for hearing 13 days after the 7 November directions hearing, the appellant's remedy was to seek an adjournment of that hearing and to lead evidence to support that application.
But the appellant did not take that course. When notified of the hearing date the appellant did not make any urgent application to vacate that date.
On the hearing date, the appellant did seek an adjournment and advanced the reasons we have set out at [28] above, namely that there was no joint report by the experts, there were a few issues Mr Moloney wanted to discuss with the appellant's solicitor, Mr Moloney was not available to attend the hearing and give evidence and the appellant required more time to investigate whether the respondents had mitigated their loss.
No evidence was led in support of the adjournment application. Most particularly there was no evidence led as to the cause and reason for the unavailability of Mr Moloney.
The appellant submits that the Tribunal was informed the expert was not available to attend to give evidence because of the short notice given for the hearing date. The appellant drew our attention to the transcript at 03:20 which records the appellant's solicitor submitting that the expert was not available "in a few days". But that statement was in answer to the Tribunal's question at 03:03 - 03:18 as to why the appellant was late in obtaining the expert's report.
At 21:06 of the transcript the appellant's solicitor did inform the Tribunal that Mr Moloney was not available to come and give evidence, but no evidence was given as to why that was so. Nor was there, at a minimum, an explanation for his unavailability given from the bar table.
Whilst a conclave of experts is usually to be encouraged, the absence of one in this case was not a reason for adjourning the proceedings. The experts could have conclaved at the hearing or given evidence concurrently.
The appellant submitted it was unjust to refuse its adjournment application to allow it further time to investigate the possibility that the respondents had failed to mitigate their loss.
The appellant's solicitor told the Tribunal that he had no evidence of a failure by the respondents to mitigate their loss (transcript at 22:08 ff). The proceedings had commenced on 1 June 2018, the appellant thus having a little over five months to gather such evidence if it existed. No evidence was led as to any difficulty investigating that matter up until that point, and that there was any likelihood of such evidence being obtained.
The appellant submitted that, having refused its adjournment application, the Tribunal's decision to refuse to admit its expert's report into evidence was not fair and equitable.
Although the Tribunal referred to a number of matters in its reasons for rejecting the adjournment application and refusing to accept the tender of Mr Moloney's report, it is tolerably clear that the basal reason for refusing to accept the tender of Mr Moloney's report was his non-attendance to be examined and cross-examined on that report.
The appellants submitted that a substantial miscarriage of justice occurred in refusing to admit Mr Moloney's report because its admission "would have reduced the amount claimed in damages" by the respondents.
The inability of a party to cross-examine a material witness is a prime example of procedural unfairness. To admit the report, and give it any weight, would have done a grave injustice to the respondents as they would have been denied the opportunity to challenge Mr Moloney's evidence where it conflicted with that given by the respondents' expert.
It is apparent that had Mr Moloney's report been admitted into evidence on some later occasion, the sum awarded the respondents may well have been less as Mr Moloney had a lower quantification of relevant matters than Mr Capaldi.
In that way, we are satisfied that there was a chance that was fairly open that had the adjournment application been granted Mr Moloney and Mr Capaldi would have given evidence and there was a chance the Tribunal would have preferred some of Mr Moloney's evidence on quantum. Hence, the appellant has satisfied us as to stage one of the relevant test.
However, we are not persuaded that we should exercise our discretion to grant leave to appeal (being stage two of the test) in relation to the adjournment application. That is because, for the reasons we have given earlier, and exercising the restraint to be applied by us when reviewing a decision involving practice and procedure, we are not persuaded that the appellant has made out any of the grounds identified in BHP and Collins and set out at [91] and [92] above.
The two which seem most apt are whether there was an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or there was an error that is plain and readily apparent. For the reasons we have given in relation to each of the appellant's submissions, we are not persuaded that either occurred.
In relation to the orders made on 7 November, and the refusal to admit Mr Moloney's report, and for the reasons we have given, we are not persuaded that the appellant has satisfied either stage one or two of the relevant test.
Accordingly, we refuse leave to appeal in relation to Grounds 1, 2, 3 and 5.
[11]
Ground 4
Ground 4 asserts that the Tribunal erred in concluding that the only available remedy was a money order.
The appellant submitted that that decision was not fair or equitable although this ground was faintly pressed. The appellant said that it relied upon its submissions in relation to grounds 1 and 2, however the issues involved are distinctly different.
The Tribunal was entitled to make a money order rather than a work order. It set out its reasons for doing so. None of those reasons were addressed by the appellant in its written or oral submissions, no submissions were made as to why the Tribunal's decision was not fair or equitable, where there existed an injustice which was reasonably clear or an error which is plain and readily apparent error.
For those reasons we refuse leave to appeal in relation to Ground 4.
[12]
Conclusion
Leave to appeal is refused. The appeal is dismissed.
[13]
Endnotes
Those issues were never identified.
Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4).
Op cit, r 6.
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 June 2019