Scope and nature of internal appeals
- An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, (which may be argued as of right) or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
- The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by 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, 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.
- Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
- As to the principles for allowing fresh or new evidence to be tendered for the first time on the appeal, Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108 is useful, particularly at [23] to [25]:
What the words "not reasonably available" in cl 12 of Schedule 4 of the NCAT Act mean was decided in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[24]. That decision has been applied in more than 60 appeals in the NCAT and we should follow it in this case.
The Appeal Panel decided in Al-Daouk that the test whether evidence was not reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but by applying an objective test and considering whether the evidence in question was unavailable because no person could reasonably have obtained the evidence before the Tribunal hearing.
… At the end of the day the test is whether, objectively speaking, no person could reasonably have obtained the new evidence prior to the hearing before the Tribunal on 15 January 2023.
- The principles applicable to setting aside a consent order were outlined by an Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252:
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.
- The circumstances in the present appeal are analogous to that described by the Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252 at [63]:
"There is no evidence of pressure, threats, or influence which made the appellant's agreement as reflected in the Conciliation Agreement Form involuntary so as to have been made under duress or to be the subject of undue influence. We do not accept that there was any relevant mistake by the appellant in signing the conciliation agreement. The appellant was not at a special disadvantage at the time she made the agreement and had it explained to her by the conciliator. Nor was she of impaired faculties. On the evidence before us, she has not established any circumstance to enable her to seek to set aside the agreement as embodied in the Conciliation Agreement Form and which formed the basis of the consent orders."
- Further the Appeal Panel recently explained in Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [17] to [23]:
We shall consider each ground in turn, but we note three matters.
The first is that it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Liang v University of Technology, Sydney [2018] NSWCATAP 285, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
The second is that it is important to recognise that the orders made by the Tribunal were made by consent following the tendering of the signed conciliation agreement. Therefore, very few of the issues identified by the tenant in her grounds of appeal were considered by Tribunal. Therefore, they cannot be raised on appeal. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33:
. . . in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2]) the Court said:
it is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
(citations omitted)
The third matter is a corollary of the second. There are various grounds articulated in the Notice of Appeal. But most cannot arise properly on an appeal as there was no hearing on the merits of the application. To take but one example, the tenant now claims that the water arrears were incorrectly calculated, but as the Tribunal was handed a signed conciliation agreement stating that water arrears were agreed at "$43.34 from 4/12/22", the issue was not raised with the Tribunal.
As the Appeal Panel stated in Prenc v Stojcevski [2016] NSWCATAP 244 at [91]:
Further, the issues raised … are not relevant or applicable in circumstances where the parties entered into a settlement agreement and the proceedings were determined by consent and not after a full hearing and determination of the matters in issue by the Tribunal. The settlement and the subsequent consent orders obviated the need for the Tribunal to hear and weigh all of the evidence, consider all of the orders sought and receive and consider the submissions of the parties. If the consent orders are not liable to be set aside because the settlement agreement was void or voidable, then it could not be found that the decision in this case was not fair and equitable on the bases relied upon by Mrs Prenc. For similar reasons, the decision was also not against the weight of the evidence.
(Emphasis added).