[1993] HCA 4
Charisteas v Charisteas [2021] HCA 29
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 4
Charisteas v Charisteas [2021] HCA 29
Judgment (16 paragraphs)
[1]
Introduction
As we understand the landlord's submissions in the 3 March 2022 landlord's documents, she contends that she did not receive notice of the hearing on 13 January 2022 for the following reasons:
1. service of the 7 January 2022 notice was not effective because in the tenancy agreement she did not give consent to the electronic service of notices and documents;
2. service of the 7 January 2022 directions was not effective because they were not left in her mailbox by 5pm on 7 January 2022.
[2]
Consideration and determination
If made out, this ground would constitute an error of law.
The landlord's submissions ignore the acceptance by the Tribunal of the sworn evidence of the tenants that they attempted to hand deliver the 7 January 2022 directions but that the landlord refused to accept this document (Tribunal Decision, at [7]-[8]).
Rule 13(2)(a) of the NCAT Rules provides that a notice or document may be served on or given to a person or body by means of personal service. In Ainsworth v Redd (1990) 19 NSWLR 78 (Ainsworth) the Court of Appeal considered the meaning of the requirement in Pt 9, r 3(1) of the Supreme Court Rules 1970 (NSW) that personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document. Kirby ACJ at 85 held that the object of the rule is to ensure that originating process in the form of a document will come to the notice of the person named as a party so that any later default in defending his or her position (for example, by entering an appearance and being represented before the court) is fairly to be attributed to a decision of that person. The obligation of personal service thereby removes the risk that the jurisdiction of the court over the person named will be asserted, conclusions reached and orders made, without a proper initial opportunity being given to the person named to appear and defend the proceedings.
We are satisfied that r 13(2)(a) of the NCAT Rules should be construed in accordance with the object referred to in Ainsworth at 85. In the light of the findings of the Tribunal we are also satisfied that the 7 January 2022 directions came to the attention of the landlord and so she was personally served with the 7 January 2022 directions within the meaning of r 13(2)(a) of the NCAT Rules. It follows that the landlord received notice of the hearing on 13 January 2022, and her decision not to defend the proceedings is to be attributed to her own decision.
For these reasons, we reject ground 1.
[3]
Ground 2: the Tribunal erred in failing to afford procedural fairness to the landlord because she did not receive notice of the relief claimed by the tenants and their evidence
[4]
Introduction
As we understand the landlord's submissions in the 3 March 2022 landlord's documents, she contends that she did not receive notice of the relief claimed by the tenants because the 4 January 2022 at 2.58pm email was not sent to her before the hearing, and that they were not given leave to claim the additional relief under ss 46, 103, 175 and 187(1)(d) of the RT Act sought in this email. She also contends that she did not receive the tenants' evidence.
[5]
Consideration and determination
If made out, this ground would constitute an error of law.
The tenants' documents relevantly provided:
"1. Statement of orders sought by the applicants
As of 09/01/2022 the applicants, Mr. Thomas Barker and Mr. Hal Whitehead, seek the following orders from the NCAT:
- Section 111 - An order declaring that a termination notice was or was not given in accordance with the Act
- Section 175 - An order regarding payment of a rental bond
- Section 103 - A termination order where the landlord has breached the residential tenancy agreement
- Section 47 - An order for the repayment of rent or other payments made by the tenant contrary to the Act or the residential tenancy agreement
- Section 187(1)(h) - An order directing the landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations
- Section 187(1)(d) - An order as to compensation
…
3. Grounds for requesting each order
Section 111 - An order declaring that a termination notice was or was not given in accordance with the Act
- Ms Morgan's original termination notice [DOCUMENT 8], alongside her voicemail [DOCUMENT 6] and SMS messages [DOCUMENT 7], made it clear that she was demanding an immediate eviction and did not consider 14 days' notice necessary, as shown by quotes such as ""IMMEDIATE EVICTION", "GO TODAY", "GO!", "collect yr stuff - return keys TODAY!".
- This was reiterated in several following emails including an email titled "You GO from [address omitted]" [DOCUMENT 12]
- As a result of these clear violations of the Act, the applicants request that Ms Morgan's termination order be declared not given in accordance with the Act.
Section 103 - A termination order where the landlord has breached the residential tenancy agreement
Ms Morgan has breached:
- Section 50 (1) & (2), a tenant's right to quiet enjoyment. By attempting to evict Mr Barker and Mr Whitehead, harassing Mr Barker and Mr Whitehead by trespassing, and violated Mr Barker and Mr Whitehead's right to privacy under Section 50 by repeatedly emailing their employers despite multiple instructions to cease and desist. [DOCUMENTS 8, 11, 12, 15, 17]
- Section 41, rent increases. My Morgan did not provide at least 60 days' notice of a rent increase and attempted to request backpay for reversal of a previously agreed decrease in rent. [DOCUMENTS 12, 18]
- Section 55, Access generally by landlord to residential premises without consent. Ms Morgan has entered the property without the consent of the tenant on at least 7 different occasions, two without any tenants present, and then 5 additional times even after Ms Morgan had been told explicitly to remain off the property and to exit the property. [DOCUMENTS 26, 27, 32, 33, 34, 41, 41]
- Section 162 (1) & (3)(a), Deposit of rental bonds. Despite paying the bond to Ms Morgan [DOCUMENTS 24, 43], no receipt has been provided to show that Ms Morgan has deposited the bond with the Board.
- As a result of these breaches, the applicants request an order for the termination of the residential tenancy agreement.
Section 175 - An order regarding payment of a rental bond
- Full payment of the rental bond was made on the 17/12/2021 [DOCUMENTS 24, 43]
- No receipt has been provided to show that Ms Morgan has deposited the bond with the Board. It is the belief of the applicants that the bond has not been deposited with the Rental Bond Board.
- The applicants refute that any damage has occurred to the property and request an order that their respective components of the bond be returned ($1520)
Section 47 - An order for the repayment of rent or other payments made by the tenant contrary to the Act or the residential tenancy agreement
- The applicants have paid rent consistently throughout the rental period. [DOCUMENT 24]
- Since Ms Morgan's actions have made inhabiting the premises unviable from the 31/12/2021 onwards the applicants are requesting the return of all rent paid from the 03/01/2021 to be returned to them (3 weeks at $380 per week including current rent in advance).
Section 187(1)(h) - An order directing the landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations.
- Ms Morgan has repeatedly violated the applicant's right to peaceful enjoyment, and more seriously, privacy.
- Ms Morgan has made continuous attempts to slander Mr Whitehead and Mr Barker on multiple occasions. [DOCUMENTS 8, 11, 12, 15, 17, 19, 27]
- Ms Morgan has ignored multiple instructions to cease and desist [DOCUMENTS 10, 14]
- Ms Morgan has harassed Mr Whitehead and Mr Barker when they attempted to vacate the property. [DOCUMENTS 25, 26, 33, 34, 35, 36]
Section 187(1)(d) - An order as to compensation
- Ms Morgan's actions have cost the applicants a significant amount of time, money and effort to rectify.
- Ms Morgan has repeatedly attempted to cause damage to Mr Barker's reputation [DOCUMENTS 8, 11, 12, 15, 17, 19, 27] despite multiple instructions to cease and desist. [DOCUMENTS 10, 14]
- Ms Morgan's actions have led to the applicants having to contact the police on 6 different occasions, present to 2 police stations and required the attendance of NSW Police on 1 occasion. [DOCUMENT 42]
- Ms Morgan has caused significant distress to both applicants over the holiday period, especially to Mr Barker due to her repeated attempts to inhibit his commissioning as an Officer in the Royal Australian Navy on the 11/01/2022. [DOCUMENTS 8, 11, 12, 15, 17]
- Mr Barker has had to consult a lawyer and consider taking an APVO against Ms Morgan to stop her from attacking his character.
- Mr Barker has had to contact all parties that Ms Morgan has contacted accusing him of unsupported acts and has had to apologise for wasting their time.
- Ms Morgan went out of her way to target Mr Barker, sending complaints to the highest authorities she could locate details for, including but not limited to: [DOCUMENT 17]
o The Dean of Medicine for the University of Newcastle
o The Dean of Rural Medicine for the University of Newcastle
o The Assistant Inspector-General of the Australian Defence Force
o Command Officer, Defence University Sponsorships, Royal Australian Navy
o ADF Complaints service
o UON Complaints service
- Ms Morgan has harassed Mr Barker and Mr Whitehead when they attempted to vacate the property, causing significant distress including the use of her car to attempt to intimidate the applicants. [DOCUMENTS, 35, 36, 41]
- Ms Morgan has repeatedly trespassed on the property, causing distress for the applicants. [DOCUMENTS 33, 34]
- Ms Morgan has negotiated only in bad faith, wasting a significant amount of the applicant's time. [DOCUMENTS 20, 21, 23]
- Ms Morgan's actions have caused Mr Whitehead to take time off work to travel to Gosford to solve the issue. [DOCUMENT 44]
- Ms Morgan's actions have led to both Mr Barker and Mr Whitehead cancelling planned holidays. [DOCUMENTS 46, 47]
- Overall, the applicants are asking for compensation to the amount of $3094.24 to Mr Whitehead and $3576 to Mr Barker. A full accounting of the costs and compensations are found in DOCUMENT 28"
We are satisfied that the landlord received the tenants' documents as an attachment to the 9 January 2022 at 9.06pm email. The landlord was clearly given notice of the claims for relief of the tenants, the grounds of those claims and their evidence. There was no requirement for the tenants to obtain the leave of the Tribunal to make additional claims to those sought in their application. As stipulated in s 38(4) of the NCAT Act, the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
For these reasons, we reject ground 2.
[6]
Ground 3: the Tribunal erred in failing to afford procedural fairness to the landlord on account of its bias in determining the tenants' claims
[7]
Introduction
As we understand the landlord's submissions in the 3 March 2022 landlord's documents, she contends that the Tribunal erred in failing to afford procedural fairness to her on account of its bias in determining the tenants' claims by reason of not having her evidence and accepting the tenants' evidence that was critical of her behaviour.
[8]
Consideration and determination
If made out, this ground would constitute an error of law.
It is not clear whether the landlord contends that there was actual bias on the part of the Tribunal member but, to the extent that she impliedly did so, we reject the contention as there is no evidence to support it.
The principles applicable to allegations of apprehended bias were recently summarised by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]; (2021) 95 ALJR 824 (Charisteas), and are as follows:
"…The apprehension of bias principle is that 'a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed." (citations omitted)
We reject the submission of apprehended bias against the Tribunal member. The landlord did not attempt to undertake the two step analysis identified in Charisteas at [11]. The failure of the landlord to adduce any evidence was her own decision. The acceptance by the Tribunal member of the tenants' evidence that was critical of the landlord's behaviour in circumstances where she did not adduce any evidence, or challenge their evidence in cross-examination, does not establish a reasonable apprehension of bias on the part of the Tribunal member. There is therefore simply no basis on which it could be concluded that a fair-minded observer might have apprehended that Tribunal member would, or might, fail to perform his duties in deciding the proceedings.
For these reasons, we reject ground 3.
[9]
Ground 4: the Tribunal erred in accepting the evidence of the tenants
[10]
Introduction
As we understand the landlord's submissions in the 3 March 2022 landlord's documents, she contends that the tenants "misled the Tribunal +/or lied under oath".
[11]
Consideration and determination
If made out, this ground would constitute an error for which leave to leave is required.
We are satisfied that the landlord has not established that Tribunal made any error in accepting the evidence of the tenants for the following reasons:
1. in the absence of the transcript of the hearing as required by the 16 February 2022 orders she was unable to demonstrate what evidence was received by the Tribunal and there was any reason why the Tribunal ought not to have accepted the evidence of the tenants;
2. the documents sought to be relied upon by her were not significant new evidence within cl 12(1)(a) of Sch 4 the NCAT as they were reasonably available at the time the proceedings were being dealt with by the Tribunal. None of the documents was unavailable because no person could have reasonably obtained the evidence in accordance with the principles in Al-Daouk at [23].
It follows that we are not satisfied that the landlord may have suffered a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act because there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for her on any or more of the three grounds in that subclause. On the contrary, this ground amounted to an impermissible attempt by the landlord to run her case when she had failed to avail herself of the opportunity to do so before the Tribunal.
For these reasons, we reject ground 4.
[12]
Ground 5: the Tribunal erred in awarding compensation, or in its approach in awarding compensation, to the tenants for distress, anxiety and disappointment
[13]
Introduction
As we understand the landlord's submissions in the 3 March 2022 landlord's documents, she contends that compensation is not recoverable because the facts as found by the Tribunal do not come within the principles for damages for disappointment and distress in Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 (Baltic Shipping). Further, she contends that the Tribunal erred in its approach in awarding compensation to the tenants for distress, anxiety and disappointment because it provided no details of how the sum of $2,000 was selected.
[14]
Consideration and determination
If made out, this ground would constitute an error of law.
In Torpey v Stewart [2021] NSWCATAP 248 (Torpey) at [24]-[27] the Appeal Panel made the following observations regarding damages for distress recoverable under the RT Act by a tenant caused by breach by the landlord of the covenant for quiet enjoyment:
"[24] It is clear that recovery of damages in respect of matters identified by the Tribunal in awarding the sum of $2,500.00 is available for breach of the landlord's obligation concerning quiet enjoyment in accordance with the approach to the recovery of such damages in Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 (Baltic Shipping) and that limitations of recovery in Part 2 of the Civil Liability Act 2002 (NSW) (CLA) are not applicable to such a claim: Moore v Scenic Tours Pty Ltd (2000) 268 CLR 326; [2020] HCA 17; (Moore's case); Makowska v St George Community Housing Ltd [2020] NSWCATAP 159.
[25] It is also clear that damages for mental distress fall within the same category of recoverable damage. In Moore's case, the plurality of the High Court (at [56]-[57]) approved of the following statement by Spigelman CJ in New South Wales v Ibbett (2005) 65 NSWLR 168 at [21]; [2005] NSWCA 445:
"The concept of 'personal injury' ... has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See, for example, Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359‑363.)"
[26] The plurality in Moore's case said that this statement reflected a correct appreciation of the effect of the decision in Baltic Shipping that a claim of the kind made by Mr Moore stood separately and apart from a claim for damages for disappointment and distress associated with physical injury.
[27] Hence, mental distress unassociated with physical injury of the kind referred to in these cases is not a "personal injury" within the meaning of Part 2 of the CLA."
In Moore v Scenic Tours Pty Limited (No 2) [2017] NSWSC 733 (Moore (No 2)) at [912]-[916] Garling J set out the approach to the assessment of damages for distress and disappointment for breach of a contract:
"[912] Damages for distress and disappointment are able to be assessed at large. …
[913] Each case must be assessed according to the distress and disappointment which a person has suffered, and having regard to all of the facts and circumstances which are proved for that individual.
[914] It does not seem to be correct to award only a token or nominal sum for such damages. …
[915] … In Planet Fisheries, the High Court rejected a submission, in a case concerned with excessiveness of an award of general damages, that the Court should seek out a norm or standard from other decisions by which the award under challenge could be identified as disproportionate …
[916] … An assessment of the sum of damages is still one undertaken …, by an evaluative process applying a sense of fairness and justice …."
Recently in assessing damages for distress and disappointment for breach of a contract Garling J reaffirmed the principles in Moore (No 2) at [912]-[916]: Moore v Scenic Tours Pty Ltd (No 4) [2022] NSWSC 270 (Moore (No 4)) at [116]-[117].
Having regard to the principles in Torpey at [24]-[27], we reject the submission of the landlord that the facts as found by the Tribunal do not come within the principles for damages for disappointment and distress in Baltic Shipping. On the contrary, the availability for damages for disappointment and distress for breach of the tenancy agreement accords with the principles in Baltic Shipping.
Having regard to the principles in the principles in Moore (No 2) at [912]-[916] and in Moore (No 4) at [116]-[117], we also reject the submission of the landlord that the Tribunal made an error of law in not specifying how it arrived at the amount of $2,000 for compensation for distress, anxiety and disappointment by breach of the tenancy agreement by the landlord.
For these reasons, we reject ground 5.
[15]
Orders
We make the following orders:
1. the appeal is dismissed;
2. leave to appeal is refused.
[16]
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: 10 June 2022
In the Tribunal Decision, the Tribunal relevantly:
1. set out the background (at [1]-[2]);
2. set out the tenants' claim (at [3]);
3. dealt with notice of the hearing (at [4]-[8]):
"4. At commencement of the hearing on 13-Jan-2022, the Tribunal contacted the landlord by phone. The landlord answered, advised that she had not received any notice of the hearing and refused to actively participate in the hearing after a short initial discussion. From that time, she remained in the call but did not say anything for the duration of the hearing. Throughout the hearing the Tribunal offered the landlord a number of opportunities to participate.
5. The landlord's participation was limited to a preliminary matter. The Tribunal checked registry records to confirm where notice of hearing had been sent. The notice of hearing had been sent to a unit adjoining the premises the subject of these proceedings. The landlord indicated that this was not the address for service as set out in the RTA.
6. The written evidence of the tenants includes screenshots of text messages sent to the landlord informing her of the hearing on 13-Jan-2022. It also includes a photo of the notice of hearing which was left with the keys to the premises when the tenants provided vacant possession.
7. The sworn evidence of the tenants that was provided at the hearing included evidence that they attempted to hand deliver the notice of hearing but that the landlord refused to accept this.
8. The Tribunal accepts this evidence and is satisfied that the landlord was served with the notice of hearing and that in addition she had been informally notified of the proceedings. The Tribunal considers that the guiding principles of the Tribunal under s 36 of the Act required the matter to be heard despite the landlord declining to participate in the substantive proceedings beyond this point."
1. dealt with the non-joinder of Ms Dong (at [9]-[10]);
2. held that the Tribunal had jurisdiction to determine the proceedings (at [11]);
3. summarised the evidence of the tenants comprising the tenants' documents and oral evidence of each of Messrs Barker and Whitehead, and noted that the landlord did not provide any documentary or oral evidence (at [12]-[14]);
4. held that the landlord repudiated the tenancy agreement, and that the tenants accepted the landlord's repudiation by giving vacant possession of the premises on 7 January 2022. It was therefore not necessary for the Tribunal to make orders under either s 111 or s 103 of the RT Act (at [15]-[20]);
5. held pursuant to s 175 of the RT Act that the rental bond of $2,280 paid to the landlord should be returned to the tenants (at [21]-[24]);
6. held that the tenants paid $2,470 rent to the landlord during the term of the tenancy agreement, and the rent payable was $1,791.43. In the circumstances, it was reasonable for the Tribunal pursuant to s 47 of the RT Act to exercise its discretion and order return of rent of $678.57 which has been paid in excess of the rent payable (at [25]-[29]);
7. as the tenancy agreement had been terminated, dismissed the tenants' claim for orders under s 187(1)(h) of the RT Act (at [30]);
8. as to the tenants' claims for compensation under s 187(1)(d) of the RT Act, found the landlord had breached s 50(1) of the RT Act (at [31]-[34]). The Tribunal:
1. dismissed claims 1 and 5 for the cost of the filing fee and costs to prepare and appear at the hearing (at [35], [41]);
2. allowed claim 2 for $348.48 for travel expenses (at [36]);
3. allowed claim 3 for $600 for lost income (at [37]-[38]);
4. allowed claim 4 for $2,400 for distress, anxiety and disappointment (at [39]-[40]):
"39. In relation to Compensation Claim 4, the The (sic) tenant claims loss under this head for distress, anxiety and disappointment as a result of the breach of quiet enjoyment. This loss is recoverable as the RTA is contract for enjoyment pleasure and relaxation and therefore falls under the exception to the general rule that damages for distress and disappointment are not recoverable: Baltic Shipping Co v Dillon [1993] HCA 4. Distress, disappointment and anxiety do not constitute a personal injury for the purposes of the Civil Liability Act 2002 (NSW) (CLA) and s 16 of the CLA does not apply: Moore v Scenic Tours Pty Ltd [2002] HCA 17.
40. The Tribunal accepts the evidence of the tenants that their engagement with the landlord has brought them significant stress, disruption to their work and studies and has also required them to abandon holiday plans in order to move house. Having regard to this evidence, the Tribunal allows $2000 in compensation on this point of claim."
The scope and nature of internal appeals
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)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
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, which relevantly includes whether there was a failure to afford procedural fairness.
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 Sch 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk) at [23].
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84(2)] stated 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."
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that 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.