Nicholson v Sydney Harbour Escapes Pty Ltd

1. These appeal proceedings arise out of a decision of the Consumer and Commercial Division of the Tribunal dated 19 December 2024 in which the appellants' case was dismissed after a hearing.
2. The appellants, Marcus Nicholson and Shelley Collins, are a couple, now married, who booked two boats through the respondent, Sydney Harbour Escapes Pty Ltd, to transport them and their family and wedding guests to Shark Island for their wedding. On the day of their wedding there was a state-wide weather event. The charter was to commence at 1:20pm and finish at 5:00pm on 5 April 2024. Weather conditions were very poor, and the appellants decided not to proceed. There was dispute between the parties about the contractual obligations in such circumstances. The appellants were invoiced for the charters and paid $5960 to the respondent. They commenced proceedings against the respondent in the Consumer and Commercial Division and initially requested that the respondent provide the service for two boats within the six-month timeframe for postponement outlined in the contract. By the time of the hearing the appellants were seeking a refund of the moneys paid for the charter, not a credit for future use. They claimed breaches of the Australian Consumer Law (NSW) (ACL) which derives from federal legislation of similar name and is made part of NSW law by s 28 of the Fair Trading Act 1987 (NSW) (FTA).
3. The Tribunal found in favour of the respondent and found that the terms of the contract were clear and unambiguous. For a cancellation of less than 14 days, full payment was not refundable. Since the appellants had cancelled on the morning of the charter, they were liable for the full payment. The Tribunal found that there was no breach of the ACL as alleged by the appellants.
4. The appellants appealed the decision. The appeal was lodged on 16 January 2025 and we accept that the appeal was lodged within the 28-day time limit set out in the Civil and Administrative Tribunal Rules 2014 (NSW), dealing with the time for instituting an internal appeal against the decision of the Consumer and Commercial Division of the Tribunal.
5. On 5 February 2025, the Appeal Panel made directions about the conduct of the appeal and listed the appeal for hearing on 20 May 2025. The parties did not comply with all of the directions and the respondent lodged several applications, a number of which were not relevant to the issues on the appeal. These applications were referred to the Appeal Panel for consideration at the hearing. They were refused. The appellants also sought to rely on new evidence and submissions lodged out of time. The procedural issues arising occupied a significant part of the hearing. The nature of the applications and the reasons that they were refused are outlined later in this decision.
6. The appeal hearing was conducted on 20 May 2025. Mr Nicholson represented both appellants and Mr Zhang, managing director of the respondent, appeared on behalf of the respondent. At the end of the hearing, the Appeal Panel reserved its decision. There were no orders made allowing the parties to file evidence or make further submissions after the hearing. Despite this, the respondent made an application on 26 May 2025 for the Appeal Panel to issue summonses and re-consider applications made by the respondent before and during the appeal. This application was refused for the reasons also later outlined.
7. We have allowed the appeal and set aside the decision under appeal. The proceedings are to be remitted to the Consumer and Commercial Division to be reconsidered according to law. We have otherwise dismissed all interlocutory applications made by the respondent and refused the appellants leave to rely on new evidence.

The proceedings before the Tribunal at first instance and the decision

1. According to the written reasons provided by the Tribunal at first instance, there was a conciliation hearing on 6 August 2024 and the usual orders in relation to the lodging of documents for final contested hearing were made when the matter did not resolve. The Tribunal noted that "an unfortunate series of procedural missteps" arose during the final hearing. Those matters, and how the Tribunal dealt with them, are set out at [3] to [9] of the decision. It is apt to outline those matters because these procedural matters are relevant to issues raised in this appeal.
2. The Tribunal member noted at [3] that, when the hearing commenced, none of the files was available but to facilitate finalisation of the proceedings the oral hearing was commenced in the absence of the files. The Tribunal set out the issues that arose in respect of evidence given by one of the respondent's witnesses at [4] to [6]. During evidence from a witness for the respondent, the witness provided video evidence. According to the Tribunal, it was stated by the witness that there was no contest as to when the video was taken and the parties proceeded to give evidence and make submissions about the weight that should be given to this video. The Tribunal observed that the appellants were given the opportunity to cross-examine the witness but at no time was the issue of the date and time of the video put to the witness. When the Tribunal asked the witness when the video was taken, the witness said it was taken by him on the route of the charter boat that was followed on 5 April 2024. The Tribunal further noted that it was only in closing submissions and after the witness had left the hearing venue and it was too late to reinstate him as a witness in order to test the evidence, that Mr Nicholson challenged the video.
3. Given this issue, the Tribunal consequently made directions at the end of the hearing, noting that the respondent was given an opportunity to provide metadata from the video file showing the date and time it was shot. The Tribunal reserved the decision and made the following directions at [8]:

2. The applicants, Marcus Nicholson and Shelley Collins, are to lodge with the Tribunal and give to the other party the written evidence that was created after 10:26am on 5 April 2024 showing the wedding ceremony altered to take place at reception venue instead of Shark Island by 26 November 2024.

3. The respondent, Sydney Harbour Escapes Pty Limited, is to lodge with the Tribunal, and give to the other party written evidence of costs incurred on 5 April 2024 in performance of obligations under the contract and metadata evidence of the creation date and time of videos taken on 5 April 2024 and shown at the hearing today by 26 November 2024.

1. The Tribunal noted at [9] that the issue of the steps taken by the appellants to arrange their wedding ceremony on 5 April and the costs incurred by the respondent in performance of the contract were contested during the hearing.
2. The appellants made a claim that the respondent had breached the consumer guarantees in s 60 of the ACL, namely, the guarantee that services would be rendered with due care and skill, and s 61 of the ACL, which stipulates that, when a consumer makes known any particular purpose for which services are being acquired, the services in any product resulting from the services will be reasonably fit for that purpose.
3. The Tribunal found at [12] that it had jurisdiction to hear the matter under FTA s 79F: each of the appellants was a consumer, the services were provided in NSW as prescribed in s 79K, the proceedings were brought within the three year limitation period set out in s 79L and the claim made was in within the monetary limit of consumer claims as set out in s 79S. We accept these findings.
4. The Tribunal set out the evidence of the parties, noting that the appellants provided documents on 20 August 2024 and the respondent provided documents on 6 September 2024. The Tribunal also referred to the evidence provided by the appellants and the respondent after the hearing pursuant to directions (2) and (3) referred to above.
5. The Tribunal noted at [14] that the appellants provided evidence showing that, after they sent the last email cancelling the booking on 5 April 2024, they made arrangements for their wedding ceremony to occur at the onshore reception facility they had booked sometime before. Most of these negotiations were conducted by phone rather than email and, as such, there was no documentary evidence to produce. The respondent does not accept this, and this was one of the reasons given for the numerous applications made for the issue of summonses to produce documents prior to and after the appeal hearing.
6. The Tribunal also noted at [15] and [16] that the respondent provided evidence of invoices for the cost of private charters for 5 April 2024 and metadata which showed a video file created on Friday, 5 April 2024 at 2:08pm being an MP4 movie shot on a Galaxy S23 ultra mobile phone. Further metadata was provided for additional film footage showing it was created on the same date at 2:10pm, 2:16pm, 2:27pm, 2:31pm, 2:32pm, 2:36pm and 2:55pm.

(1) It was common ground that the respondent was engaged to charter two boats to carry the appellants, family and friends to a wedding ceremony on Shark Island on 5 April 2024. The contract was said to have been negotiated over the telephone and through email and the purpose of the agreement was to transfer the applicants and their guests to an island where the wedding ceremony only was to take place. Two boats were to be supplied, one at a cost of $4660 and the other at a cost of $1300. It was an outdoor wedding and the appellants stated they were aware of the risks involved in relation to weather. There were no pre-contractual discussions relating to who should bear the risk of the booking if there was poor weather.

(2) The relevant contractual provisions were cll 9 and 22 of the written contract. Clause 9 dealt with cancellations and cl 22 related to the question of what would happen if there was "unsafe" weather. The Tribunal set the terms of these provisions in full.

(3) The appellants became aware of ominous weather conditions forecast for 5 April 2024. There were numerous communications between the appellants and the respondent about whether the charter was safe to proceed which commenced three days before the day of the charter.

(4) The appellants first wrote to the respondent on 2 April 2024 at 10,40am setting out the planned timeline for Friday, 5 April 2024. They raised concerns about the weather reports. There were emails back and forth between 2 and 4 April 2024. The appellants raised concerns about the weather forecast and queried whether the respondent was comfortable to proceed. On each occasion, the respondent replied that the charter could procced. Guests could be accommodated under cover. On 4 April 2024 the appellants wrote to the respondent attaching screenshots from the Bureau of Meteorology of marine and wind warnings for strong winds and 100% chance of rain with chance of thunderstorms. They raised concerns about their elderly and less mobile guests being safe in the forecast weather conditions, however, indicated they would rely on the respondent's skill and judgement in relation to that issue. Later that afternoon the respondent advised that the boat operators and skippers had been consulted regarding the weather forecast for 5 April 2024. The weather forecasts were an overview of generalised conditions across the region, the weather conditions in the Harbour areas were significantly less severe and there was no reason to believe guest safety would be impacted by the current or forecast weather conditions. The respondent expressed confidence in safely going ahead with the booking.

1. The respondent submitted that, in the lead up to the booking, the weather was unpleasant but not unsafe. The appellants were given options to reschedule over a period of four days. Instead, they cancelled. The amount invoiced was non-refundable. The appellants submitted that the weather was unsafe, and the respondent should have made the decision not to proceed with the charter. The respondent breached cl 22.
2. The respondent relied on the evidence of the skipper of one of the proposed charter boats. The skipper provided a written statement dated 3 September 2024 and gave oral and video evidence at hearing on behalf of the respondent. His evidence was considered at [34] and [35]. He gave evidence about how and when he assessed the weather on the morning of 5 April 2024. The respondent relied on this evidence to substantiate its decision under cl 22 of the contract to proceed with the proposed charter on 5 April 2024.
3. The skipper's evidence was that his assessment procedure was to acquire a weather forecast at 7:00am in the morning from a specialist website called "Seabreeze". In addition, he had a particular view of the Harbour and Fort Denison from his property. Fort Denison was the most exposed part of the route to Shark Island. He informed the respondent's office on the morning of 5 April that in his view the weather was adequate for the charter to proceed. The skipper acknowledged that he had seen the Premier's warning on television that morning but gave evidence that had conducted many thousands of charters and thought it was safe, irrespective of the Premier's forecast. He was not alarmed as the Premier was talking of NSW generally and not Sydney Harbour. The skipper gave evidence that the most dangerous times for charters were when guests get on and off boats. Sydney Harbour only had a half metre swell on that day which would not present a risk. He had prepared the boats for the charter from 8:00am on the morning of 5 April.
4. The skipper also gave evidence that, after the appellants had cancelled, he still travelled the route to Shark Island and took a video. That video showed that, while the route was unpleasant, it was not unsafe. He shot the film footage from Jones Bay Wharf to Shark Island seated. The Tribunal viewed this footage during the hearing.
5. The Tribunal found at [44] that the appellants had adopted the risk of holding a relatively inflexible event with regard to timing. The contract was negotiated between the parties and the terms and conditions recorded and constituted acceptance of who adopted what risks in relation to cancellation due to weather (at [45]). The appellants had no discussions with the respondent about this issue prior to entering into the contract and they chose to be bound by the cancellation terms offered by the respondent without demur (at [47]).

Unsafe weather

If the weather is dangerous for boating, Sydney Harbour Escapes will decide on the morning of the charter whether it will be postponed. Unsafe weather is not classified as usual rain or windy circumstances. If it is postponed, we will reschedule the charter. Rescheduled charters must be used within six months of the original booking date. Payment will still apply for catering, wait staff and Wharf booking fees. If you choose not to reschedule, then cancellation fees will apply as per C9(i).

1. The Tribunal noted that there was no subcl 9(i) but, rather, cl 9, which provided as follows:

Cancellations made 28-14 days prior: Total monies paid are not refundable. Consideration will be given to food, staff and boat costs incurred due to the cancellation.

Cancellations made less than 14 days prior: full payment is not refundable.

If the operator cancels the charter, the charter amount will be refunded.

Please note - changing to a different boat [different name, size or style] means you are effectively cancelling your booking. Please refer to above and note, the maximum charge of boats per booking is one time.

48 I am satisfied there is no ambiguity in the contract terms relating to weather and cancellation. Any decision whether a charter should proceed was unequivocally in the hands of the charter operator under clause 22. It was unequivocally their obligation to make a call on whether a charter should proceed on the morning of the charter. I accept the evidence that SHE's skipper took the usual steps on the morning of 5 April to advise whether the charter should proceed when he reviewed the weather early in the morning and advised SHE the charter should proceed.

49 I do not accept the applicant's contention that it was up to some other entity or person outside of SHE to decide whether the charter should proceed. There was no term or condition whatsoever that the booking ought to be cancelled or postponed if some third-party such as the Bureau of Meteorology or the Premier provided opinions or forecasts about the state of the weather.

50 The terms and conditions in relation to termination by a consumer were clear and unambiguous. For the cancellation period of less than 14 days relevant to this proceeding, full payments already made were not refundable.

51 Despite this clear and unambiguous term, SHE offered the applicants an opportunity on 2 April to postpone the charter with minimal costs. I do not accept the applicants' contention that costs to be charged were any more than $110.00 for either one, or both boats. It was the applicants who chose not to accept this offer SHE was not required to make under the terms of the contract. In addition, SHE was not obligated to offer the credit against any future booking refused by the applicants on the day of applicants' cancellation. Given the evidence shows the applicants were able to easily change the wedding ceremony to the onshore reception venue late on the morning of 5 April, I find that they would have known of their capacity to do this beforehand. They chose to go "down to the wire" in terms of giving SHE notice of their cancellation due to weather.

52 This very late cancellation notice caused SHE to incur costs in performance of their obligations under the contract. As demonstrated in evidence provided under directions made at the end of the hearing, these costs included costs of the private charter of Seaduction and Prometheus, lost administrative and office time spent dealing with the booking and time in performance of the weather assessment of 5 April 2024.

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to an internal appeal in respect of a final decision may appeal as of right "on any question of law". The party may also seek leave to appeal on "any other grounds".

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters. Since that time that there have been several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique).
2. In Unique, the Appeal Panel summarised at [25] the propositions that arise from those authorities, including the propositions that a question of law should be articulated with precision, is not dependent on facts not found and is not dependent on the answer to the question asked, and a mixed question of fact and law is not a question of law.
3. The Appeal Panel found that Prendergast, which identified some sources of questions of law, was "overly reductive" [31]. Relevantly, the Appeal Panel identified further questions of law [32] including: whether the Tribunal drew inferences that were not available from the facts found; whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question; whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction; whether the facts found necessarily satisfied the statute or did not and whether the Tribunal made a jurisdictional error.
4. Examples of questions of law include:

(1) Denial of procedural fairness (Prendergast at [13](4)); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]- [84]).

(2) A failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]). This category of error may also constitute a failure to accord procedural fairness.

(3) Applying the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53]).

(4) Making a factual finding where there is no evidence to support that finding ( ; at ).

1. Recently, in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified at [33] that, when a question of law arises as to whether proceedings were procedurally fair, it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing.
2. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:

It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'.

1. In Unique, the Appeal Panel noted that what constitutes a question of law "is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises" (Unique at [37]). It was also noted that, when dealing with self-represented parties, the Appeal Panel may consider for itself whether a question of law is raised. As such, if the material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28].
2. Where the ground of appeal does not raise a question of law, the appellant may seek leave to appeal.

1. The principles governing an application for leave to appeal under the NCAT Act are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 at [84]. They are the same principles applied by the courts in exercising the discretion to grant leave to appeal. As observed by Gleeson JA (on behalf of the bench) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."

(Citations omitted)

1. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]:

"... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice."

(Citation omitted)

1. As a gateway to the exercise of discretion, where there is an appeal from a decision of the Consumer and Commercial Division, the circumstances in which Appeal Panel may grant leave to appeal are limited to those set out in cl 12(1) of Sch 4 to 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:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the owners corporation 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.

1. Accordingly, in an appeal from a decision of the Consumer and Commercial Division, the appellant must satisfy the requirements of cl 12(1) of Sch 4 and, if that is done, the Appeal Panel must also then consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).

1. In their Notice of Appeal, the appellants seek leave to appeal on grounds that the decision was not fair and equitable, it was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing. In the particulars provided as to why the decision was not fair and equitable, the appellants submitted:

(1) The Tribunal placed more importance on the opinion of the respondent's third-party subcontractor who owned and skippered the boat despite his potential bias and financial stake in the decision. The Tribunal did not have regard to the independent government authorities whose sole focus was on public safety. The Tribunal disregarded their evidence about the Premier's statement and the Bureau of Meteorology warnings. In support of this contention, the appellants seek to rely on new evidence, being a letter from Nicole Hogan, Assistant Commissioner, Emergency Management NSW State Emergency Service (SES) dated 2 January 2025, which refers to the severe storms that occurred on 5 and 6 April 2024 where the SES issued multiple warnings for severe weather.

(2) The Tribunal overlooked the fact the respondent was contractually responsible for determining the severity of the weather, but the respondent did not make the decision and instead left it to a third-party subcontractor.

(3) The evidence of how the day actually unfolded is irrelevant as the decision should have been made on the morning by the respondent based on the forecast.

(4) The Tribunal failed to consider that the largest boat chartered would be full in capacity, meaning many people would be standing throughout the journey in rough seas. The Tribunal failed to take into account the advice from NSW Transport about reducing load in poor conditions.

(5) The Tribunal referred to the costs incurred by the respondent but failed to consider that those costs were paid to their third-party skipper, being the very person relied on by the respondent to make the decision. The third-party was not asked to justify the costs.

(6) The Tribunal accepted statements provided by the respondent after the hearing from two third-party operators claiming that they conducted charters on the day. The Tribunal did not seek any evidence from them to confirm that those charters actually took place or what the relationship was between the respondent and the third parties that gave evidence.

(7) The Tribunal failed to consider how many other operators may have decided to cancel their charters on the day due to safety concerns.

(8) The Tribunal failed to consider the meaning of clause 22 regarding the meaning of unsafe weather.

(9) The Tribunal failed to consider that the weather on the day was the third worst recorded in Sydney Harbour in the past seven years and the Tribunal relied on the evidence of the skipper that charter boats could shelter even in 15 to 25 knot winds.

1. The respondent opposed the appeal on the following grounds:

(1) The appellants signed a contract on 2 March 2024 that explicitly gave the respondent unambiguous authority to make the decision on the condition of the weather and the ability for a charter safely to proceed.

(2) The decision on weather was always unambiguously the respondent's judgement call and the respondent made these decisions in consultation with the vessel's head skipper who holds a commercial, government-authorised qualification. In addition, government-funded Sydney ferries and several other smaller, less powerful commercial charter vessels operated on that day and sworn statements in the initial hearing confirm that video evidence taken from one of the hired vessels on the same day travelling to Shark Island at around the same time as the appellants' charter time.

(3) The respondent had offered the appellants options to reschedule but the appellants did not take up this offer. Furthermore, the respondent has strong reasons to believe that the Shark Island venue was cancelled several days before the intended wedding ceremony which raises concerns of "a possible deceitful intent" by the appellants who led the respondent to believe and plan for the charters, which were never going ahead. The appellants booked another venue, being Doltone House, prior to the day of the wedding, and if this is the case, this is relevant to the claim made by the appellants. This is why the respondent seeks access to information from the appellants, Doltone House and National Parks.

(4) The appellants do not raise any error made on the basis of a question of law. The contractual terms were clear. The decision made by the Tribunal was not against the weight of evidence and there is no matter of principle or public importance or clear injustice that warrants the granting of leave. The new evidence provided sought to be relied on by the appellants, being a letter from the SES, indicates that this information was requested after the hearing; as such, this is not significant evidence that was not reasonably available because it could have been requested before the hearing.

1. On 19 March 2024, the appellant lodged detailed submissions in response to the reply lodged by the respondent, to the following effect:

(1) The respondent had introduced new evidence after the end of the NCAT hearing, denying the appellants the opportunity to verify their claims or request further responsive evidence. The submissions included third-party statements that were signed by marketing personnel rather than boat masters and lacked authenticity.

(2) The respondent's expert failed to provide video evidence from Fort Denison even though it was asserted that this was the most relevant point for consideration of the weather.

(3) The invoice that was provided by the respondent suggested that multiple staff members were engaged in the claims that were made, which was contrary to the evidence of the respondent's skipper that he was alone while filming the video.

(4) The reply to appeal failed to address the respondent's duty of care, particular regarding passengers.

(5) Any allegations about changes to the Shark Island booking were immaterial to the contractual dispute over the respondent's handling of the charter and the attempt to summons information about unrelated correspondence was a distraction from the issue.

(6) The respondent failed to properly undertake a serious assessment of the weather conditions on the day and had no intention of postponing the charter due to unsafe weather, contrary to its contractual obligations. The concept of weather being dangerous for boating, which is the expression used in clause 22, must take into account the broader concept of engagement, including transporting guests and elderly individuals, infants and passengers using crutches. The duty of care extended to ensuring safety conditions for both embarking and disembarking from the vessel.

(7) The appellants challenged the evidence of the skipper, including evidence about the way the videos were taken.

1. At the time the appellants lodged the Notice of Appeal, they provided a bundle of documents comprising submissions about the events leading to up to the day of the proposed charter, a copy of the contract, credit card payments details, the relevant email correspondence between the appellants (as referred to in the decision), correspondence with the respondent after the dispute, the submissions made by the respondent in the proceedings at first instance, copies of press releases from the Bureau of Meteorology and the evidence provided to the Tribunal after the hearing by the appellants and the respondent. The appellants also sought to rely on the letter from Nicole Hogan dated 2 January 2025 (referred to in para 42 (1) above). These documents were lodged by 16 January 2025.
2. The Appeal Panel directed the respondent to file and serve a copy of a reply to appeal by 19 February 2025. The respondent complied with this direction. The Appeal Panel further directed that the appellants file and serve by 19 March 2025 all evidence given to the Tribunal at first instance on which it was intended to rely, and all evidence not provided to the Tribunal at first instance but on which it was intended to seek leave to rely and written submissions in support of the appeal. The appellants were directed to provide a transcript of the relevant parts of the hearing if they were seeking to rely on what happened at the hearing at first instance.
3. The documents lodged by the appellants on 19 March 2025 comprised a detailed response to the reply (summarised at para 44 above) and an annotated version of written extracts of transcript from the hearing. The submissions filed focussed on claimed errors in the reply to appeal rather than on submissions about why the decision made by the Tribunal was in error, either on a question of law, or on grounds that leave to appeal should be granted because there had been a substantial miscarriage of justice.
4. The respondent was directed to file and serve by 24 April 2025 all evidence provided to the Tribunal at first instance on which it intended to rely and any response to the appellants' submissions seeking leave to rely on new information and written submissions in opposition to the appeal. No documents were filed, although a document was filed on 1 May 2025 which comprised a second reply to appeal and included other "applications", the detail of which is considered later in our reasons.

Procedural issues: applications by the respondent

1. On 28 February 2025, the respondent made applications for the issue of summonses to Mr Nicholson, relating to the cancellation of the Shark Island wedding venue and the new booking of Doltone House, the National Parks Events Team at Shark Island also relating to the cancellation of the booking and Doltone House, relating to the new booking. The reason for the requests was stated to be that the documents were critical to establish the "true timeline" of events, particularly regarding the cancellation of the Shark Island venue and the appellants' dealings with the respondent. The respondent further stated that it had concerns the appellants misrepresented their intentions to the respondents, citing a concern with the weather at the last moment, and did not fully disclose their prior cancellation of the Shark Island venue.
2. The Registrar refused the issue of the summonses, noting as follows:

The appellant seeks to issue 3 summonses to produce documents for a large amount of records.

An appeal is not a fresh hearing involving the questioning of witnesses and the production of new documents that were not given to the Tribunal at the Tribunal hearing, other than in very limited circumstances where leave may be given to rely on new documents. An appeal hearing involves the consideration of whether there is an error on a question of law in the decision appealed against, or whether otherwise leave to appeal should be granted.

No proper basis has been established to issue the summons to produce documents, therefore the request is refused.

1. On 1 May 2025, the respondent lodged a second reply to appeal, which was accompanied by a strike-out application, an application for enforcement orders under Part 5 of the NCAT Act, an order for costs under s 60 of the NCAT Act, a notice of misleading conduct by the appellants and a "procedural integrity and enforcement request". These various applications were not dealt with prior to the appeal hearing. Nor were they referred to the Appeal Panel for determination. These applications were nonetheless documents that were provided to the Appeal Panel prior to the hearing as part of the respondent's material. The respondent did not seek to proceed with these various applications at the hearing and focused on its later applications of 14 May 2025 and the application for the issue of summonses that was made on the morning of the hearing.
2. For completeness, we note the strike-out application raised similar issues as those raised by the respondent in its later applications for dismissal. In summary, the grounds for the strike-out application were that the appeal was an abuse of process, the appellants had engaged in persistently misleading conduct, had improperly sought to shift the evidentiary burden, mischaracterised accepted evidence about the weather and had made irrelevant and improper demands. The procedural integrity and enforcement request related to the respondent's contention that the appellants had not properly complied with direction 2 made by the Tribunal at first instance and had not provided independent third-party verification about this.
3. The respondent contended that the appellants had contravened ss 71 and 72 of the NCAT Act and requested enforcement proceedings pursuant to Part 5 of the NCAT and costs orders pursuant to s 60. Sections 71 and 72 set out criminal sanctions for breach and they are not within the remit of the Appeal Panel. In addition, these matters are not relevant to the issues that require determination on the appeal, namely, whether there has been an error on a question of law or whether there has been a substantial miscarriage of justice on the grounds set out in Sch 4 to the NCAT Act. The Appeal Panel did not make any orders in relation to these applications, and we have taken these applications, at best, to include submissions about why the respondent contends the appellants' appeal should fail.
4. On 14 May 2025, the respondent lodged applications for summary dismissal of the appeal on the basis of s 55(1)(b) of the NCAT Act and for want of prosecution under s 55(1)(d) of the NCAT Act. The respondent contended that the appellants had missed the deadline for lodging additional submissions, had failed to provide a hearing transcript and had provided a notice of appeal that lacked specificity and was vague and unfocused. It was submitted that the appellants had persistently disregarded previous Tribunal directions referring to the conduct of the hearing of the Tribunal at first instance, had failed to comply with the directions of the Appeal Panel and there were no reasonable prospects of success of the appeal. On the morning of the hearing, the respondent made an application for the issue of a summons to Doltone House relating to the change of the wedding venue by the appellants.

(1) Section 55(1)(d) provides that the Tribunal may dismiss an application or appeal if the Tribunal considers that there has been a want of prosecution of the proceedings. This is a discretionary power. The Appeal Panel considered the principles relevant to the exercise of discretion to strike out a claim for want of prosecution (now called want of due despatch in some rules) in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 at [31]- [33]. As stated by the Appeal Panel (referring to the decision of Simpson J in Hoser v Harcher [1999] NSWSC 527 at [19](1), (2), (7) and (11)) the ultimate question is whether, in balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed, the discretion should be exercised only in a clear case where it is manifestly warranted, the onus is on the defendant to establish any prejudice upon which reliance is placed and the exercise of the discretion to strike out should not incorporate any element of punishing tardiness on the plaintiff.

(2) While the appellants had not lodged additional submissions within the timetable directed, they provided detailed submissions and documents at the time they lodged their appeal, they provided detailed submissions in response to the respondent's reply, and they provided extracts of transcript in accordance with the Tribunal directions. The further written submissions provided in support of the appeal, which were not lodged until 14 May 2025, were rejected by the Tribunal, on application of the respondent. As such, there had been no prejudice to the respondent in that regard. The appellants otherwise complied with various directions made by the Appeal Panel and attended and actively participated in the hearing. They have taken active steps in prosecuting their appeal. In these circumstances (and having regard to the principles set out in ) the Appeal Panel was not satisfied that the appeal should be dismissed for want of prosecution. The respondent's application under s 55(1)(d) was therefore refused.

(5) In their Notice of Appeal and supporting documents and submissions, the appellants raised concerns about the decision of the Tribunal at first instance, including concerns about procedural fairness. For the reasons later outlined, there is substance in this complaint.

(6) We also note that the appellants have sought leave to appeal on the grounds that the decision was not fair and equitable and was against the weight of evidence. The contentions made by the appellants about the evidence are sufficient to warrant detailed consideration by this Appeal Panel. There is no evidence that the appeal has been initiated for a collateral purpose. We are also satisfied that the appellants genuinely seek to challenge the decision of the Tribunal at first instance.

(7) The appeal seeks to raise issues that were litigated before the Tribunal at first instance and, while an appeal under s 80 is not intended to give parties a second opportunity to relitigate their claims, the NCAT Act recognises that parties have the right to appeal on a question of law or with leave in circumstances where they are able to establish an error that satisfies the "gateway" in cl 12 of Sch 4 to the NCAT Act. The findings made by a Tribunal at first instance may be upheld on appeal, but this does not by itself mean the appeal is, or was, misconceived or lacking in substance or that the proceedings are frivolous or vexatious.

(8) The concerns that the appellants raise are not so lacking in substance that the appeal should be summarily dismissed pursuant to s 55(1)(b) without determining the merits of the appeal. We also note that this application was made less than one week before the appeal hearing and the parties were otherwise ready to proceed at the commencement of the appeal hearing. Having regard to the guiding principle in s 36 of the NCAT Act, the Appeal Panel determined that the most effective way to resolve the real issues in dispute between the parties was to refuse the application for summary dismissal under s 55(1)(b) and proceed to consider the merits of the substantive issues raised on the appeal.

(9) In relation to the request for the issue of summonses and the consequential adjournment of the hearing, the Appeal Panel refused this request for several reasons. First, a similar request was rejected by the Appeals Registry on 28 February 2025 on the grounds that an appeal is not a fresh hearing. This request made on the morning of the appeal was an attempt to reagitate a decision that had already been made by the Appeals Registry. Secondly, and perhaps more significantly, the question of whether the appellants had made alternative arrangements for their wedding venue before 5 April 2024 is not relevant to the appeal.

(10) The critical issue in dispute in the proceedings before the Tribunal at first instance was about the operation of cll 9 and 22 of the contract and, in particular, whether the respondent should have decided not to proceed with the charter pursuant to clause 22 on the basis that the weather on 5 April 2024 was unsafe. The appellants claimed that the respondents had an obligation to make the decision not to proceed because their services should have been rendered with due care and skill, and having regard to the available evidence, the respondent should have cancelled rather than pushing the appellants to proceed. It is also claimed, for the same reasons, the charter should have been reasonably fit for the purpose of carrying the appellants' wedding guests and family, including infirm and disabled guests, which it was not given the prevailing weather conditions.

(11) There is no dispute that, in the absence of the respondent making this decision, the appellants decided not to proceed. The fact that they had contingency plans in place is irrelevant to the interpretation of clauses 9 and 22 and the impact of ss 60 and 61 of the ACL. The Tribunal found that cl 22 provided for the respondent to make this decision and it is implicit, although not considered at length in the written reasons, that the respondent had appropriately formed the view that the charter could proceed in discharge of the obligations under cl 22 and ss 60 and 61 of the ACL.

(12) Whether the appellants were disingenuous in their communications leading up to 5 April 2024 by attempting to persuade or even pressure the respondent to cancel was not relevant to the determination of the dispute. While it is apparent that the respondent has a strong view that the appellants acted with deceitful intent, this was not determinative of the critical issues before the Tribunal. This issue may have been relevant if the respondent had relied on representations made by the appellants about the wedding venue booking to its detriment, but this was not the case and this is not for us to determine on this appeal. As such, we accept the submissions of the appellant about the relevance of the information sought to be summonsed. In short, there is no forensic purpose in issuing the summonses for the purposes of the appeal.

1. On 26 May 2025, after the hearing and while the decision was reserved, the respondent requested, amongst other things, that the Appeal Panel reconsider the request for the issue of a summons and the application to dismiss the appeal. This request was refused, and the respondent was notified of this by order issued on 3 June 2025 in the following terms:

The response application to re-open for various purposes is refused. The matters sought to be re-agitated have been the subject of application and decision in the course of the hearing.

1. These reasons are self-explanatory and follow from the procedural history set out above. Relevantly, the Appeal Panel and Registry had considered applications in similar terms lodged prior to and during the appeal hearing and had refused those applications for the reasons outlined above. The application lodged on 26 May 2025 raised no new issues that warranted re-opening the appeal.

1. As already noted, the appellants sought to rely on new evidence, being a letter from an Assistant Commissioner, NSW SES dated 2 January 2025. The respondent opposed leave.
2. This letter refers to correspondence sent on 26 November 2024 by the appellants, which was after the hearing but before the decision of the Tribunal at first instance. The correspondence refers to the public safety warnings disseminated by the Bureau of Meteorology and NSW SES on 5 April 2024, noting that the appellants changed plans based on this advice and subsequently suffered monetary loss. The Assistant Commissioner states that NSW SES takes its responsibility to warn about public safety seriously and that the first warning issued was on 4 April based on a severe weather forecast from Newcastle to the Illawarra and central tablelands. The NSW SES also issued multiple warnings on 5 April including a severe weather watch and act warning advising people to stay indoors due to dangerous weather conditions.
3. This letter, by referring to the various warnings that were made on 4 and 5 April 2024, does not add to the uncontested facts raised in the proceedings at first instance. We further note that this information was evidence that the appellants could have obtained before the proceedings were heard. Indeed, one of the issues about the evidence before the Tribunal (referred to in the decision at [53]) was that the appellants relied on the generalised weather warnings and the statement from the Premier which applied to the Illawarra to Newcastle and inland regions.
4. In contrast, the respondent relied on the opinion formed by the skipper, which it contended was reasonably based, as justification for the decision to proceed. The appellants did not provide expert evidence specific to the critical issue that required determination in the proceedings, namely, whether the prevailing conditions known on the morning of the charter made it "dangerous for boating". The letter from the Assistant Commission does not provide such an opinion, although we accept that the appellants' case before the Tribunal at first instance and before the Appeal Panel was that this could be inferred by the existence of the severe weather warnings.
5. The Appeal Panel therefore refused leave to the appellants to rely on this new evidence: first, because it carried limited weight; secondly, because it was consistent with the evidence already relied on by the appellants that was before the Tribunal at first instance, and thirdly, because it was not new evidence that was not reasonably available at the time of the proceedings at first instance.

1. Consistent with the principles in Cominos and Unique, we have examined the grounds of appeal and submissions to discern whether the appellants raise questions of law.
2. Having regard to the particulars provided by the appellants, we have identified an issue about the process followed by the Tribunal after the hearing which raises the question of whether there was a denial of procedural fairness. The appellants have raised this issue as being unfair in the context of leave to appeal but, in our view, this ground also raises a question of law. Accordingly, the appellants do not need leave to appeal on this ground.
3. At the end of the hearing, the Tribunal made directions about the provision of further evidence. These directions were limited to permit the respondent to file and serve evidence about metadata and further evidence about costs incurred. The metadata issue related to the dispute about when the video shown at the hearing was taken. The reasons for the further directions are clearly outlined in the decision at [4]-[9]. The respondent provided this evidence but also provided further videos and related metadata (referred to at [16]). In addition, the respondent filed and sought to rely on statements from other boat operators about weather conditions on the day. The appellants were not given the opportunity to respond to this additional evidence or to test its veracity.
4. Despite this, the Tribunal had regard to this additional evidence, and it is apparent from [53] that the Tribunal found the respondent's evidence, as provided by the skipper and supported by the additional post-hearing evidence, to be "compelling". The Tribunal found that the skipper's evidence "ought to be given significant weight". The Tribunal also accepted the skipper's evidence that other forecasts relied on by the appellants applied to more general areas rather than the relevant area within Sydney. In other words, even though the forecasts from credible sources were predicting severe potentially unsafe weather, the Tribunal preferred the evidence of the skipper about the prevailing weather conditions in Sydney Harbour on 5 April 2024.
5. There is no difficulty in a Tribunal making further directions about evidence to be filed at the end of a hearing when the issues were not sufficiently explored during the hearing, particularly if it is apparent that one of the parties wants to test the evidence. The Tribunal made the directions at the end of the hearing to give the Tribunal and the appellants the opportunity to test whether the video recorded weather conditions at the relevant time. However, the post-hearing evidence provided by the respondent went well beyond this.

30 That there has been a denial of procedural fairness does not necessarily mean that the appellant succeeds on this appeal. If it were to be concluded by the Appeal Panel that the denial of procedural fairness made no difference to the outcome of the proceedings, the appeal on that ground would be dismissed ...

31 All that the appellant needs to show in order to succeed on the appeal because of a denial of procedural fairness is that the denial deprived him of the possibility of a successful outcome. In order to negate that possibility it would be necessary for the Appeal Panel to find that a properly conducted application could not possibly have produced a different result (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 and 147; [1986] HCA 54).

1. This is consistent with the decision of the High Court in Nathanson V Minister for Home Affairs [2022] HCA 26, where the High Court (per Keifel CJ, Keene and Gleeson JJ at [1]) found that:

... the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome ...

1. Their Honours also found at [2] that the "realistic possibility was demonstrable from the record of the Tribunal's decision" and that "the appellant was not required to articulate a specific course of action which could realistically have changed the result".
2. While this case relates to the question of jurisdictional error in the context of migration appeals, these principles are also consistent with the decision of the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 where the High Court stated at [16] that all the appellant needed to show on the appeal was that "the denial of natural justice deprived him of the possibility of a successful outcome".
3. If the Tribunal was going to rely on this additional evidence, as it did, the Tribunal ought properly to have given the appellants the opportunity to provide expert evidence or other material in response. Whether the appellants would have done so, or whether there was such evidence available, is not the critical question. The issue is whether the appellants were deprived of a realistic possibility of providing further evidence to the Tribunal that could have changed the outcome. We are satisfied that this is the case and therefore find that this ground of appeal is established.
4. The decision is set aside, and the proceedings are remitted to the Consumer and Commercial Division for reconsideration according to law. That will clearly require further directions to enable the appellants the opportunity to deal with the evidence just discussed.
5. It is therefore unnecessary to consider the other grounds raised that the decision was not fair and equitable and was against the weight of the evidence, which relate to leave to appeal.

(1) The respondent's applications that the appeal be dismissed under ss 55(1)(b) and (d) are refused.

(2) The respondent's applications for the issue of summonses made on 20 and 26 May 2025 are refused.

(3) The appellants' application for leave to rely on new evidence is refused.

(5) The decision is set aside and the proceedings are remitted to the Consumer and Commercial Division for reconsideration according to law.

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.