Nyi Nyi Aung & Anor v Advantage Taxation & Accounting Solutions: Your Business Growth & Tax Experts Pty Ltd; Nyi Nyi Medical Pty Ltd v Advantage Taxation & Accounting Solutions: Your Business Growth & Tax Experts Pty Ltd

The appeals to this Court and their procedural features to date

1. On 27 November 2023, the corporate client filed a Summons (2023/429214). On the same date, one of the personal clients (Julie Aung) filed a Summons (2023/429238).
2. Prior to the hearing in this Court, the two matters were before me when I was administering the civil list in Parramatta sittings for November 2023 and February 2024, being the venue where the respective summons (originating process for the appeals) was filed. Some procedural observations are pertinent.
3. Firstly, I directed that where directors purported to act for companies, they must prove their authority to carry on doing so. In the case of Business Growth & Tax Experts, an affidavit was sworn/affirmed by Kim Ang Lim dated 12 December 2023. In the case of Nyi Nyi Medical Pty Ltd, an affidavit was prepared by Nyi Nyi Aung and filed on 12 December 2023. This affidavit did not however, comply with the requirements of rule 7.2 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). In circumstances where the corporate client appeared to be managed and controlled by Dr Nyi Nyi Aung and Dr Julie Aung, both of whom were present in Court, I was prepared to overlook that procedural point.
4. Another matter of some significance is that when the matter came before me for the first time on 4 December 2023, I verbally indicated to the parties the limit to this Court's jurisdiction to hear appeals against decisions of the Small Claims Division of the Local Court (4/12/23, T 3-4) [1] .
5. Thirdly, because of the sporadic occasions in which hearings can take place in the Parramatta Civil List (four sittings a year), when the matter was before me in early December 2023 and having regard to the nature of the proceedings - related appeals from the Local Court - I had fixed the appeals for hearing in the February 2024 sittings, with the parties to exchange submissions in the meantime. That was, in retrospect, over-ambitious. This was because it took time for the parties (not legally represented) to facilitate this Court's receipt of the reasons of the Assessor and the files of the two proceedings in the Local Court.
6. On the eve of the scheduled hearing in the February 2024 sittings, the parties had exchanged written submissions, but the Local Court file was not, by then received. On 15 February 2024, copies of the transcript of the proceeding before the Assessor on 7 November 2023 were supplied (by email and by hard copy) to the parties.
7. When the matter was before me on 15 February 2024, complaint was made by one of the parties (Ms Lim) that the clients had impermissibly purported to rely upon evidentiary material in this Court that was not before the Local Court. (This appears in a notation numbered 4 in the Court's orders made on 15 February 2024). Ms Lim, acting for the Practice, in her written submissions (filed 7 February 2024) made the serious allegation that the personal and corporate clients had "modified" documents that were before the Local Court, as well as "making commentary notes on original evidence". In both sets of proceedings in this Court, the clients had compiled voluminous bundles of documents which went well beyond the evidentiary record in the Local Court.
8. Having regard to these circumstances, the Court had no confidence that it could rely upon evidence that was anything other than what was before the Local Court. The hearing for the February 2024 sittings was vacated so that the file from the Local Court proceedings could be obtained and the evidentiary record in the Local Court was transparent and accessible. To facilitate that outcome, the matters were transferred from Parramatta to Sydney for a Court mention in March.
9. On 21 February 2024 the Local Court files in the two proceedings were produced to the Sydney registry of the District Court. There is nothing I can see on the Court files to indicate that the parties were notified of production or sought access to them.
10. On 11 March 2024, the matter was before the Judicial Registrar for mention, when directions were made for the defendant to serve written submissions in response. It is not apparent that on that occasion, any request for the Local Court files was made by the parties (all effectively self-represented) when the proceedings were before the Judicial Registrar.
11. The matters were returned to me on 17 April 2024. At the outset I expressed a concern whether written submissions supplied by the parties had proceeded with reference to evidence that was not before the Local Court. The clients prepared two bundles of, effectively, submissions (63 pages in the case concerning the corporate client and 43 pages in the case concerning the personal clients). These self-evidently voluminous bundles contained a raft of additional facts and arguments not tethered to the grounds of appeal, with only fleeting references to evidence that was in the Local Court and little or no reference to transcript findings. In short, the two bundles of material submitted by the clients lacked utility in expounding their cases in a fair way. I took the parties through the evidence that they respectively relied upon in the Local Court. Subject to a qualification (in connection to the claim against the corporate client), the parties confirmed that the statements that appeared in the two Local Court files were the statements that were before the Assessor. The qualification was that the Practice indicated its belief that some pages were missing from its case statement in that matter. However, in that regard, Ms Lim, on behalf of the Practice, indicated that the Practice was content for this Court to proceed on the basis of the statement (including the annexures) in the Local Court file as it had been supplied to this Court. Thereafter, I marked, as exhibits, (a) the pleadings as they were in the Local Court, (b) the statement evidence relied upon by the parties and (c) the transcript of the proceedings (including reasons) before Assessor Connelly on 7 November 2023. Out of an abundance of caution, notwithstanding my concern about the utility of the written submissions (as being potentially affected, or perhaps infected, by extraneous material), I asked the parties - and Drs Aung in particular - whether they were ready and willing to proceed with their arguments on 17 April on the basis of the evidence, as it was in the Local Court, and as it became in this Court. They indicated their assent to doing so.

Evidence relied upon in the Local Court

1. Consistent with the practice of the Small Claims Division of the Local Court, evidence was given by witness statement (Rule 2.6(2)(a) of the Local Court Rules 2009 (NSW); and also the effect of s 35(4) of the Local Court Act 2007 (NSW)).

The evidence for the Practice against the corporate client

1. For the Practice, reliance was placed on a typed document titled 'Plaintiff's summary of case' (Exhibit C). This ran to 35 pages, split into two bundles (Part 1 being pp 1-23 and Part 2 being pp 24-34).
2. In the narrative statement (roughly of two pages), reference was made to the Practice being appointed on 9 April 2022. The statement was made that the corporate client thereafter supplied communications affecting the financial years 30 June 2021 and 30 June 2022. Then, on 7 September 2022, the Practice contended, a meeting occurred with the meeting to 'sign off' on tax and bookkeeping work for the financial year ended 30 June 2021. Invoices were paid the next day.
3. Thereafter, as indicated by the narrative statement, the corporate client corresponded back and forth with the Practice to enable it to complete the financial year ended 30 June 2022. This was described, in summary fashion, as 'work on the books, tax, ATO compliance, inclusive of organising payment plans, assisting with Directors ID as per new laws, and other affairs for the whole of the group'.
4. It was, so the Practice said, only on 12 December 2022 that the Practice received an email from the new accountant indicating that the corporate client had appointed a new tax agent. The Practice contended that all services for both tax and bookkeeping for the year ended 30 June 2022 were finalised by 15 December 2022; which was why the Practice issued two invoices on that day. Those invoices had not been paid.
5. As indicated, there were many documents annexed to this case summary. At pages 4-7 of the summary of the case, there were four invoices to the corporate client. The first two invoices were dated 7 September 2022 and 15 December 2022 (invoices 21334 and 21537). On their face, the invoices concerned the provision of 'bookkeeping services' for the financial years ended 30 June 2021 (which was paid) and 30 June 2022 (which was unpaid) respectively. The remaining invoices were dated 7 September 2022 and 15 December 2022 (invoices 21322 and 21539). On their face, these concerned the provision of company tax returns for the financial years ended 30 June 2021 (which was paid) and 30 June 2022 (which was unpaid) respectively.
6. At pp 8-11, there were covering emails and documents to indicate that in or around August 2022, the Practice prepared Business Activity Statements for the periods January-March 2022 and April-June 2022. This was of some significance given the ambivalent submissions made later by Julie Aung as to whether the corporate client agreed that the Practice would perform this work.
7. At pp 12-13, there was an email between Mr Manish Bhargava, for the Practice and Julie Aung, dated 9 April 2022 in which requests were made for information. This was said to support the evidence of an appointment in April 2022, as the Practice contended. However, the subject was titled 'Tax requirements for 20-21'. That does not, in itself, support the Practice's point of an appointment to complete the tax returns or bookkeeping for the financial year ended 30 June 2022.
8. At p 15, there was an email from Julie Aung to Mr Bhargava on 12 April 2022, in which she forwarded an email she had received from Roger Ruzzier slightly earlier. In that email, Mr Ruzzier, who appeared to act as a financial adviser, referred providing information relevant (amongst other things) to the financial year ended 30 June 2022. During the course of the hearing of the appeal, Dr Aung verbally sought to explain, as I understood her, that Mr Ruzzier was mistaken or, at any rate, that I could not treat that as an evidentiary indication that she (and her husband) had requested taxation services for that financial year. However, as I explained to Dr Aung in Court, having had notice of this particular document within the Practice's summary, she had the opportunity of putting on evidence in the Local Court to provide such explanation (including even calling Mr Ruzzier) and had not done so. In such circumstances I indicated that I would not take into account her explanation from the Bar Table.
9. Other documents concerning Dr Julie Aung's share trading activities which the Practice argued held prove request for taxation services for the financial year ended 30 June 2022 were at pp 22, 23 and 32.
10. On 16 May 2022 (p 16), Mr Bhargava sent an email to the corporate client's email address and Julie Aung's personal email address; in which he indicated that the Practice was reconciling accounts, relevantly, for the "FY 2022". There is no evidence to indicate that either Dr Aung had responded, in effect, by saying that the Practice had no authority to perform taxation work for that particular financial year.
11. There were other email communications from 7 September 2022 which was the date, the Practice indicated, when the Practice had completed its work for the 2021 financial year. For example, there was an email of 21 September 2022 (p 32) from Julie Aung to Manish Bhargava regarding here use of Commsec for share trading purposes (p 32); an email of 25 September 2022 regarding a payment for Sydney Water in the last quarter of the 2022 financial year (p 33); a query about certain transactions (from July to September 2022) that was made on 10 October 2022. On 29 November 2022, Mr Bhargava raised a query with Julie Aung about identification of directors.
12. On 12 December 2022, it appeared that the Practice became aware of a complaint that their erstwhile clients had of them, expressed in an 'ethics letter'. It does not appear that a letter itself was attached, but an email by Ms Lim to Mr Edward Hoe, partner of the new accountancy firm for the clients, asserted, amongst other things that "we have completed financial year work 2022 for the family group" which the Practice intended to invoice for.
13. On 15 December 2022, Ms Lim emailed Julie Aung under the subject 'Invoices for work done and outstanding invoice'. The content of the email indicated that the Practice had completed corporate and personal tax returns (and other work) for the 2022 financial year and the Practice issued invoices for that work. The next day, Julie Aung, rather curtly, asserted that this work had been done without instruction and she was not willing to pay. That response itself prompted a riposte by Ms Lim later on 16 December 2022.

The evidence for the corporate client

1. For the corporate client, this consisted of a joint typed statement of Julie Aung, but was also signed by each of Nyi Nyi Aung and Julie Aung on 2 July 2023, with three pages of annexures.
2. In that typed statement, at paragraphs 2-4 (incl), Ms Aung effectively restated the grounds identified in the Defence in opposition to the Practice's claim.
3. At paragraph 5, she stated that she had clearly instructed Ms Lim (and Mr Bhargava) to do only one year's worth of tax return, being for the financial year ended 30 June 2021. The reason for that, she stated, was that 'we' do not know of their accounting skill, so they wanted to give them a 'trial'. Further, she stated, the clients had had a difficult professional relationship with the Practice; as illustrated by termination of its services in June 2022.
4. At paragraph 8 of the statement, she stated that the Aungs were surprised when informed that the Practice had completed tax returns for the financial year ended 30 June 2022 without their knowledge. She alluded to the absence of any written letter of engagement.
5. She stated, at paragraphs 12-13, that she and Mr Aung had paid an invoice within a couple of days on 9 September 2022. They were displeased that the Practice had charged them a fee for the preparation of a BAS, but they paid that in October 2022.
6. She stated, at paragraph 17, that she had a phone conversation with Ms Lim where she told the latter that she and Mr Aung did not require their services and returned to their former accountants.
7. She stated that on 8 November 2022, she went to Westpac Bank and asked staff to remove the authority held by the Practice; to deprive it of access to their banking details. Nevertheless, they were concerned that the Practice did in fact obtain access.

The Practice's evidence against the personal clients

1. For the Practice, reliance was placed on a typed document titled 'Plaintiff's summary of case' (Exhibit C). There were two parts to this document, which was paginated. The first part ran to 25 pages. What followed then was a bundle of additional correspondence, running from pages 26 to 47 inclusive.
2. The summary of the case was substantially similar to the corresponding document that the Practice relied upon in its claim against the corporate client.
3. At pp 4-7, there were invoices. Two of them (invoices 21335 and 21336) were dated 7 September 2022. Invoice 21335 concerned the preparation of Julie Aung's personal tax return and bookkeeping associated with her share trading activities. Invoice 21336 concerned the preparation of James Aung's personal tax return and bookkeeping associated with her share trading activities. Both of these were paid on 12 September 2022.
4. The other two (invoices 21540 and 21541) were dated 15 December 2022. The former concerned the preparation of Julie Aung's personal tax return and bookkeeping associated with her share trading activities. The latter invoice concerned the preparation of a personal tax return for James Aung. Both of these invoices were unpaid.
5. The balance of the documents (mainly emails) substantially duplicated the annexures to the case summary in the claim against the corporate client, summarised earlier. But there were some additional documents. At pp 26, 35, 37-38 for example, there were emails from Julie Aung to Ms Lim relating to her stock trading for the financial year ended 30 June 2022.

Evidence of the personal clients

1. The personal clients relied upon a typed statement prepared by Julie Aung (Exhibit D) which, as the Assessor noted, was materially identical to the statement of Ms Aung prepared for evidence in defence of the proceeding against the corporate client, which I summarised earlier.

Summary of the issues and identification of the evidence

1. In her reasons, the Assessor dealt with matters that were common to both proceedings. The Assessor started with the general finding that the Practice and the defendant had various communications in April 2022 and the personal clients asked the Practice to perform several services in connection with the financial year ended 30 June 2021.
2. The Assessor then noted that the Practice considered that it had received instructions to perform further services for the financial year ended 30 June 2022. This was disputed by the director defendants who say that the request was confined for services in relation to the year ended 30 June 2021. Whether or not such instructions were supplied was the issue. The Assessor noted that there was much correspondence up to at least September 2022 but although there was no singular written agreement, the Practice contended that it had received continuous instructions to complete the work for both financial years. In particular, instructions continued after the corporate client had paid the invoices in connection with the services supplied for the year ended 30 June 2021.
3. The same issues were disputed in connection with the dispute involving the director clients as the corporate client. The Practice contended that after the director clients had paid the invoices in connection with work performed that related to the financial year ended 30 June 2021, they continued to instruct the Practice after that.
4. The Assessor summarised the defendant's point that without a singular document, in writing with its signature, there was no agreement for the Practice to perform the work for the latter year and they had lost confidence in the Practice to such extent that they took their business to another accountant.
5. The Assessor identified certain instances which suggested that the Practice's services were requested for the 30 June 2022 financial year. This included an email by Julie Aung on 12 April 2022 and an email on 16 May 2022 to the Plumpton Medical Centre which evinced Julie Aung's intention to reconcile accounts for the financial years for 2020, 2021 and 2022. Other documents were sent through June and July 2022, up to September 2022, which the Assessor characterised as providing an indication of the director clients continuing to want the Practice to supply services for the disputed financial year.
6. The Assessor recognised that it was on 12 December 2022 that the Practice had been contacted by another accountant. After that communication, it advised that it had completed work for the year ended 30 June 2022, including corporate and personal tax returns to the corporate client, and director clients, respectively. By this stage, as the Assessor noted, the relationship was effectively terminated; but by then invoices had been prepared and rendered and re-sent in January 2023.
7. The Assessor recognised that most of the correspondence relevant to the claim against the corporate client had also been relied upon by the Practice in the claim against the director clients.

The findings

1. The Assessor found that the evidence supported the assertion by the Practice that it was instructed, at the first meeting in April 2022, to do all the taxation work for the corporate client and the director clients. Further, although there was no agreement in writing, the director clients and corporate client continued to instruct the Practice to perform that work. The Assessor rejected the case of the defendants in the two proceedings that they did not want the Practice to do work for the financial year ended 30 June 2022.
2. The Assessor found that it had not been demonstrated to be illegal for the Practice to have performed work without a written contract. At any rate, the Assessor found that there was an agreement that the Practice would perform the work that it was asked to do and bill at the completion of the work. Moreover, in comparison with the work performed for the 2021 financial year, the Practice "pretty much completed" the work for 2022; with the completed documents sent to the defendants in December 2022. It was a "do and charge" arrangement. The rates were 'accepted' by payment of the bills for the earlier work. The invoices of 15 December 2022 were in very similar amounts to the work performed in respect to the 2021 year.
3. The Assessor also found that the defendants had received the benefit of the returns and all of the work performed for the financial year ended 30 June 2022.
4. Thus, on the balance of probability, the Practice succeeded in connection with both claims. What remained was the quantum of the claims.

Orders made by the Assessor

1. In relation to the claim against the corporate client, there were two unpaid invoices of 15 December 2022: one for the sum of $3,168 and the other for $3,850. The Assessor determined that interest should be payable on the combined sum of $7,018 from 23 December 2022. Court costs were fixed at $368.
2. In relation to the claim against the personal clients, there were two invoices, again both being dated 15 December 2022, reflecting $220 for Nyi Nyi Aung's tax return and $3,850 for Julie Aung's personal tax return. This was a combined sum of $4,070. Similarly, the Assessor determined that interest should be payable on that sum from 23 December 2022. But because of the circumstance of two personal clients, the monetary judgments were broken up. This was done by dividing the issue and service fees ($368) between both defendants so that each would pay a half share ($184) of those particular fees. Judgment was ordered against Nyi Nyi Aung for $404 and against Julie Aung for $4,414. Both personal clients were ordered to pay interest on those respective amounts.

This Court's jurisdiction concerning appeals from the Small Claims Division

1. As I indicated to the parties last December, and in a reminder email of 15 February 2024, the jurisdiction of this Court on appeals of this kind is limited.

Statutory provisions

1. Section 38(2) of the Local Court Act 2007 (NSW) ('LC Act') provides that "Subject to this Division, all judgments and orders of the Court exercising jurisdiction under this Part are final and conclusive".
2. Pursuant to s 39(2) of the LC Act, a right of appeal to this Court from a decision of the Small Claims division of the Local Court can only be brought on two grounds, being a lack of jurisdiction or denial of procedural fairness (Section 39(1) confers a right of appeal to the Supreme Court but only on a question of law).
3. Whether or not a tribunal has accorded procedural fairness is shaped by the content of the legislation (the LC Act) and certain basic incidents recognised as natural justice. As to the statutory requirements, what is especially pertinent is 35(2)-(6), which provide as follows:

"(2) Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (3) The rules of evidence do not apply to proceedings being heard or other proceedings in the Small Claims Division. (4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by the rules or a practice note. (5) A Magistrate or an Assessor exercising the jurisdiction of the Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. (6) Proceedings in the Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded."

1. More generally, in relation to the incidents of procedural fairness under the common law, it is unnecessary to make any exhaustive statement. Common incidents have been usefully collated in the Local Court Practice Guide, which appears in Volume 2 of Ritchie's Uniform Civil Procedure (NSW) at [22.600] [2] . These typically include:

• having a decision maker acting without bias;
• reasonable opportunity to the parties to present evidence and make submissions;
• deciding a case on the basis of the parties' pleadings;
• deciding a case on evidence that has been brought to the notice of the parties
• giving reasons for a decision.

1. To reiterate, such common law notions must be accommodated with the statutory requirements I have referred to. An example of this is that the common law rule of a party's expectation that a Court will act only upon admissible and probative evidence must give way to s 35(3) of the Local Court Act.
2. Given some of the complaints made by the appellants made in this appeal, it is well to bear in mind the observations of Malpass M (as he then was) in Stojanovski v Parevski [2004] NSWSC 1144 where his Honour said (with reference to the particular circumstances of that case, being the refusal of an adjournment application and tender of document): "20. This is another of the many cases that are brought before this court and dressed up in a presentation of denial of natural justice in an endeavour to circumvent the limited avenue of appeal that is available when matters are heard in the Small Claims Division. Error in point of law does not give rise to an appeal. 21. In cases such as this, plaintiffs often quote authority of appellate courts dealing with questions such as the refusal of applications for an adjournment or to amend a pleading. Generally speaking, such authority is not of assistance where the court is dealing with a question of denial of natural justice. The considerations involved can be expected to be different. 22. It needs to be borne in mind that the object of the Division is to provide litigants with a fast, cheap and informal resolution of their small disputes..."
3. In Ejueyitsi v Thomas & Anor [2022] NSWDC 490 [3] I said: "39. The Attorney General's Second Reading speech to the Legislative Assembly on 22 November 1990 contained the following passage relating to a statutory right of appeal corresponding now to s 39(2), which explained the limited nature of appeals from the Small Claims division of the Local Court to this Court: - "There will be no appeal of any kind from the decisions of the Small Claims Division other than for lack of jurisdiction or denial of natural justice. The prohibition of appeals is quite necessary if a party is to be able to litigate in the division without the risk of suddenly escalating costs. It is also fair to argue that if the taxpayer is to fund a forum for people who decide to litigate over small matters, it should be a once-only forum and the public purse should not have to contribute the immense cost of providing an appellate procedure." 40. As I explained recently in Eliezer v Sydney Water Corporation [2021] NSWDC 66 at [90], in cases such as this, an applicant may establish an error within jurisdiction, but this Court has no jurisdiction to remedy errors of law within the Small Claims Division of the Local Court. There is no right of appeal to this Court from a decision of the Small Claims Division of the Local Court on the ground of an error of law: Stojanovski v Parevski [2004] NSWSC 1194 at [20]; Habra v Reinke [2005] NSWSC 1090 at [8]"
4. It has been observed, possibly in obiter, that there is a distinction between the ground of a 'lack of jurisdiction' with the more broadly expressed grounds of 'jurisdictional error': Saqa v Bainvalu [2005] NSWSC 1091 at [20].

Evidence on appeal - attempt to rely upon fresh evidence

1. In the course of argument, Dr Aung proposed to place before the Court documents that were not before the Local Court. I rejected that attempt; giving brief reasons. It may assist the parties to better understand those reasons with further elaboration. By r 50.16 of the UCPR, appeals to this Court (assuming that the Court is properly seized of jurisdiction) are by way of rehearing. Customarily, this Court proceeds upon the basis of the record in the Local Court.
2. Rule 50.14 of the UCPR gives a further indication of the narrowness of the evidence expected on appeals from the Local Court to this Court.
3. In Hungerford v Cantor [2020] NSWDC 326, I observed, in the context of a litigant's attempt to delay an appeal in this Court on the basis of wanting to obtain new material that was not before the Small Claims division: "34. ...It seems to me that the plaintiff believes or expects that he is able to run an appeal from the Local Court's decision completely afresh, that is, by putting before this Court not only the evidence that he had the opportunity of putting in the Local Court, but also such new, or 'fresh' evidence that he might procure, by the use of this Court's processes, if necessary, even if that evidence was not available to him at the time of the hearing in the Local Court. 35. Such belief is misconceived. Although the nature of this proceeding is an appeal, by way of rehearing, of the decision of the Assessor in the Small Claims Division (r 50.16 of the UCPR), it is an appeal of a very limited kind. The appeal is brought pursuant to s 39(2) of the Local Court Act, which relevantly permits a right of appeal where there has been a denial of procedural fairness. 36. There is, however, no indication in that legislation, which circumscribes the right of appeal from decisions of the Small Claims division of the Local Court to the District Court, that this Court is to hear an appeal on the basis of evidentiary material that could have been, but was not obtained, in the Local Court, being admitted as fresh evidence in this proceeding. There is no statutory provision to that effect in the Local Court Act; nor any rule of Court which authorises this Court's receipt of new evidence on an appeal. 37.The proposition that this Court could have regard to fresh material not before the Small Claims Division of the Local Court is also not supported by extrinsic material. The legislative history explaining the nature of this Court's jurisdiction on appeal was explained in the following way by the Attorney General's Second Reading speech to the Legislative Assembly …" (the relevant extract appears in paragraph 39 above in these reasons)."
4. I would, on reflection, add if fresh or additional evidence was to be recognised at all, it would be expected that it would relate to proof of either of the grounds of jurisdiction in s 39(2); ie. to prove a denial of natural justice or an absence of jurisdiction. Otherwise, and to the extent that fresh or additional evidence was permitted, it would likely result in this Court getting entangled in factual disputes that go to the merits of disputes between litigants where the objects and statutory text (especially ss 38(2) and 39(2)) relating to the resolution of disputes in the Small Claims Division point to factual disputes going to the merits being finally determined in that division.
5. The parties in this appeal however sought to rely, notably in oral argument, upon additional evidence which was not before the Local Court; which evinced the erroneous and common belief that the District Court was an appropriate forum to resolve disputes that were factual or partly legal and partly factual and which was thought to be germane to the merits of their respective positions.

The Grounds of appeal

1. The two summons were filed the same day (27 November 2023).
2. They were not prepared by legal practitioners. Misleadingly, it identifies Business Growth HQ & Tax Export Pty Ltd as the plaintiff in each case, when in fact that entity is the defendant and, indeed, is not a complete description of it in any event. It is the corporate clients and the personal clients who, in each respective case, are the plaintiff(s). Julie Aung annexed an affidavit to the Summons but that had no material content.

Appeal by NYI Medical Pty Ltd

1. For the summons in what I now call the corporate client's appeal, that is to say, the appeal brought by Nyi Nyi Medical Pty Ltd, there is a conflation (and indeed repetition) as between what is said under the sections of the form titled 'Details of Appeal' and 'Appeal Grounds'.
2. Under 'Details of Appeal', it is said that: "The Judge (sic) who heard my original cases made a legal mistake and that mistake was so significant that the decision should be Overturned. The Judge made the defendant to (sic) pay accountant Fee for FY 2022 Tax returns which was done by Plaintiffs without consent. The defendant denies being indebted to the plaintiff".
3. Under 'Appeal Grounds', it is said that: "1. The Judge (sic) who heard my original cases made a legal mistake and that mistake was of such significant (sic) that the decision should be overturned. 2. There was an error of law in the decision of the court."
4. This was all in the formal part of the Summons.
5. But within the attachment, there was greater elaboration, in what amounted, in effect as a hybrid document that set out grounds of appeal, added factual narrative and documents apparently relied upon to support the factual narrative.
6. For present purposes, it is sufficient to identify what I understand to be grounds of appeal (as distinct from argument) from that document. This was as follows and quoting (where appropriate, paragraph numbering since not all of the narrative statement appeared to have paragraph numbering): "1. It was a miscarriage of justice. 2. My cases were unfairly judged due to Judge (sic) Claire not having sound knowledge about Taxation. 3. She (apparently the Assessor) was unprepared to the case prior (sic) the hearing date. She was confused in the terminology of the 2022 BAS and 2022 Tax Returns. … Judge Claire made order Base (sic) on the date of emails. … Further, Judge only considered the date of the emails I communicated with my accountant but not on the content of emails. … Judge Claire did not read the content of emails and try to understand due to lack of concentration on her job. She was unprepared for the cases. … In conclusion, My cases were unfairly Judged due to Judge Claire Not Having sound Knowledge about Taxation. She made a wrong Judicial decision due to her only considering the date of the emails, she was not focussed on the content of these emails , she confused the end of the calendar year (which is December) with End of Financial Year (which is 30 June) . I had communication is only for 2021 Tax Return , not for 2022 Tax Return."

Appeal by Nyi Nyi Aung and Julie Aung

1. In the Summons for this appeal, under the section 'Details of Appeal', the following appears: "1. The Judge (sic) who heard my original case made a legal mistake and this mistake was so significant that the decision should be overturned. The case was judged unfairly."
2. Then, under the section of the Summons titled 'Appeal Grounds', the appellants state: "1. The Judge (sic) who heard our original case made a legal mistake and this mistake was so significant that the decision should be overturned. 2. The plaintiffs rendered accounting service without our consent , without our bank statements . Judge made a wrong decision. 3. The judge made an order based on the date of emails sent, not based on the content of emails. None of the emails related to discussing or authorizing Plaintiffs to prepare for our FY 2022 personal as well as company Fy2022 Tax Return."
3. As occurred with the other connected appeal, surrounding the summons was an amalgam of narrative statement and attachments of an evidentiary kind. In the narrative statement, apparently prepared and signed by both director clients, the following appears: "I am appealing on the following Ground: 1. There was a miscarriage of Justice. 2. My cases were unfairly judged due to judge Clair does not have sound knowledge about Taxation. 3. SHE WAS UNPREPARED TO THE CASE PRIOR THE HEARING DATE. She was confused in the terminology of TAX 3. SHE DID NOT PAY ATTENTION TO HER JOB due to her family member's illness (she even tried to postpone the date of the hearing). 4. SHE CAME UNPREPARED CASES BEFORE HEARING DATE. She was confused in terminology of 2022 BAS and 2022 Tax Return. Australian income Tax law can be very complicate(sic) and difficult to understand."

The appellant's submissions

1. I referred earlier (at [16]) to the significant difficulties I had with the two bundles of documents comprising the clients' written submissions. They were prepared prior to the Court's receipt of the Local Court files. In the circumstances I focus upon the oral submissions made by and on behalf of the clients.
2. Dr Julie Aung presented oral argument for the appellants. Although she was asked to deal, initially with the claim involving the corporate client, she effectively elided her argument in relation to that claim with argument in relation to the claim against her and her husband as personal clients.
3. First, she asserted that the Assessor did not listen to her argument, which I took to amount to the point that the Assessor did not appreciate, regarding the significance about personal income tax. Her point was that although she and her husband agreed that the Practice should prepare personal income tax returns for the financial year ended 30 June 2021 and Business Activity Statements for the periods January - March and April - June 2022, this agreement did not extend to the Practice preparing personal income tax returns for the financial year ended 30 June 2022.
4. Associated with this point was that the evidence was no higher than the personal clients providing information to the Practice relevant to the preparation of personal income tax returns was limited only to the year ending 30 June 2021. Dr Aung said in her argument that for the Assessor to have found that information had been conveyed to the Practice for tax purposes for the 2022 year, there was a great deal of additional information that would need to have been conveyed (she cited that she derived 8 sources of income) and the Practice did not, effectively, prove that it had received this information.
5. Her second point was that at certain passages in the argument in the Local Court (T 45.10 and 44.25) the Assessor had acted in a way which she characterised as 'misleading' or, alternatively, asking leading questions of Ms Lim, representing the Practice to help the Practice make out its case.
6. Thirdly, she submitted that the reasoning expressed at T 61.16-61.34 was 'wrong' and this Court should overturn orders based on that reasoning.
7. Fourth, the Assessor erroneously used the emails and other communications between the clients and the Practice after 7 September 2022 to reason that they assisted her to find that the clients agreed to the continuation of the supply of services after that date. Properly understood, the Assessor should have found that they only proved the clients' agreement to assistance in connection with the preparation of Business Activity Statements or an issue affecting their super fund. They did not prove, specifically, a request for assistance with the preparation of taxation returns. Another way of expressing the same point was that if there had been agreement for the Practice to prepare tax returns, she would have needed to provide a much greater amount of information than that which was annexed to the Practice's statement of its case.
8. In the course of this argument, I queried Dr Aung as to whether she was in fact giving evidence from the Bar table; in the sense of giving extrinsic explanations as to what the documents annexed to the Practice's case summary were and whether she had the opportunity to give evidence about that in the Local Court.
9. This prompted Dr Aung's fifth point. This was that she had been deprived of the opportunity of presenting evidence and submissions. She referred to the point of argument in the Local Court where, at T 42, she had been muted (she having participated by AVL). When I suggested in response that this submission ignored the earlier opportunities she had to present argument, her own conduct which had led to a time limitation being imposed and her muting and the subsequent opportunity she had to present argument, I understood her to submit that she had forgotten what she wanted to submit and, further, was not capable of submitting her case because of the affront that she experienced by being 'silenced', and shouted at by an Assessor who was much younger in age than her. Interspersed with this was an assertion of bias against the Assessor.
10. Sixthly, Dr Aung complained that the Assessor gave only meaningful consideration to the Practice's case against the corporate client, but not its case against the personal clients.
11. Seventhly, Dr Aung emphasised the importance of a written engagement to prepare tax returns or bookkeeping, which was conspicuously missing for the 30 June 2022 financial year. As a medical practitioner herself (and speaking for her husband who was the same), she deployed the analogy that practitioners required clear consent in writing from patients undertaking risky surgical procedures. The analogy applied to the supply by professionals of services concerning money.
12. Dr Aung also argued that the Assessor should have known that it was a requirement in taxation law that an accountant preparing taxation services would need a client's written agreement before it could provide those services.
13. Eighthly, Dr Aung referred to paragraph 5 of her witness statement in which she had asserted that she had emphasised that work was only to be "1 year('s) worth", for the financial year ended 30 June 2021. Although there was no express reference to the period, she stated from the Bar Table that this was an instruction she gave to the Practice in April 2022. She also cited passages from the transcript of the proceeding in the Small Claims Division (T 19.43 to 20.35) where she had argued why the engagement was limited to one year.
14. In submissions in reply, after Ms Lim had referred the Court to the documentation annexed to the Practice's case summary to argue that it showed instructions that Dr Aung had continued to give to the Practice after completion of the returns for the 2021 financial year, Dr Aung appeared to suggest that consent was not given to the Practice to prepare BAS returns for the first half of the 2022 calendar year. In this respect, she referred me to paragraph 14 of her witness statement (Exhibit D). She also submitted that parts of the documents related only to work performed in the 2021 financial year (which was not in issue).
15. I have also considered as a final check, the two bundles of written submissions compiled in both sets of proceedings by the clients. I have already expressed my difficulties with those bundles. It suffices to say that they do not add materially to the submissions that were made verbally by Dr Aung.

"Miscarriage of justice"

1. Before I turn to the legitimate bases of jurisdiction in this Court, I propose initially to deal with the point raised as a ground of appeal in both the summons and the submissions of the clients. This was that the Court could intervene on the basis of a 'miscarriage of justice'. That language is of course borrowed from criminal discourse. It is not found in s 39 of the LC Act (or any other provision of that Act). The concept itself, when dealt with in the criminal context, denotes many potential concerns in the substantive and/or procedural determinations of a criminal trial. In the absence of legislative justification, there is no basis for this Court to enlarge its limited statutory jurisdiction beyond the grounds identified in s 39(2).

No lack of jurisdiction

1. I do not discern any of the grounds of appeal or points argued in the appellant's submissions as raising anything to suggest that the Assessor decision or other conduct evinced a lack of jurisdiction.
2. The High Court's latest statement about 'jurisdictional error', which referred to the concept as "breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute" [4] would be apt, for example, to include a court purporting to decide a dispute contrary to the requirements of statute; the paradigmatic example of a 'lack of jurisdiction'. Some other examples of a lack of jurisdiction (which amount to jurisdictional error) by an inferior court were referred to in Craig v South Australia (1994) 184 CLR 163 at 177 where a unanimous Court said: "Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach"
3. There may be some nuance between an inferior court acting with a lack of jurisdiction and acting beyond its power. For present purposes, however, 'acting outside its general area of jurisdiction' is an expression that is synonymous with an inferior court deciding a matter where jurisdiction is lacking for the purposes of s 39(2) of the LC Act. It is instances of that which engage this Court's jurisdiction to adjudicate an appeal from the Small Claims Division of the Local Court.
4. In the ensuing passage in Craig (at 177), the High Court considered other species of jurisdictional error when an inferior court "while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do" (emphasis supplied). Matters of that kind would not likely engage this Court's jurisdiction to entertain appeals from the Small Claims Division. What I have said in this, and the preceding paragraphs, may not be an exhaustive statement on the ambit of this ground of appeal, but it suffices for this case.
5. To reiterate, no one took any point before the Assessor that she lacked jurisdiction to determine the Practice's claim against its former clients for unpaid invoices for the supply of professional services within the monetary limit of the Local Court's jurisdiction under the LC Act.
6. That was understandable. The Practice brought a 'money claim' (of a liquidated kind) against former clients which the Small Claims Division of the Local Court had jurisdiction to deal with pursuant to the combination of ss 29(1)(b), 29A and 30(2)(a) of the LC Act. Moreover, no specific defence to that claim raised by the personal or corporate clients was such as to deprive the Assessor of such jurisdiction (such as any of the matters referred to in s 33(1) of the LC Act). The Assessor properly exercised jurisdiction when she accepted the Practice's claims and ordered monetary judgments in its favour.

Denial of procedural fairness

1. Consequently, for this Court's jurisdiction to hear this appeal to be engaged, the clients must establish that their complaints constitute a denial of procedural fairness. I address each of the clients' submissions identified above in turn.
2. As to the first submission, I do not discern that the Assessor failed to listen or appreciate the personal clients' distinction between their absence of agreement for the Practice to prepare personal taxation returns and their agreement that the Practice prepare Business Activity Statements. At any rate, I am not satisfied that any error, which is one of fact, would constitute a denial of procedural fairness.
3. As to the associated submission, the circumstance, if it was established, that Julie Aung would have provided much more information to the Practice had she wanted it to provide personal tax returns than it was proven that she did would only give rise to a factual error. That would not constitute a denial of procedural fairness.
4. As to the second submission, I perceive that this complaint is at bottom one of bias: that the Assessor was virtually asking a question of a 'Dorothy Dixer' variety; to enable or assist Ms Lim articulate her case for the Practice. The existence of bias (actual or apprehended) could ground a denial of procedural fairness. An allegation of bias is also raised in later submissions that I will come to.
5. The principles concerning bias against judicial officers [5] have been stated many times but for convenience, I refer to Court of Appeal's recent statement in Mohareb v State of New South Wales (No.2) [2024] NSWCA 69, (omitting citations): "8. An allegation of actual bias is a serious allegation that should not be made unless there are proper grounds for it …. 9.The test for recusal for apprehended bias is the "double might" test: that is, whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion …. 10. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case may not be decided on the merits…."
6. I reject that bias (actual or apprehended) could be imputed to the Assessor on the basis of the passage (T 44-45) of the transcript. The nature of the proceeding before the Assessor, and consistently with the relative informality of hearings in the Small Claims Division, featured the parties tendering their evidence (in statement form) and for argument to thereafter proceed. The transcript (from page 6) up to the point where Dr Julie Aung makes this complaint indicates that it was Dr Aung who dominated the exchanges between the parties and the Assessor. The nature of the dialogue (at least from the Assessor) was unexceptional. She was endeavouring to ascertain from the parties what their positions were in respect to the issues that had been identified. It is notable that at an earlier point in the transcript (T 31.29), the Assessor signalled that she may have obtained greater assistance if, instead of continuing to hear Dr Aung's arguments, she might simply ask questions of her. This was reflective also of a tendency of the exchanges during Ms Lim's presentation. The point was that fairly read, the Assessor was asking questions of Dr Aung and Ms Lim to enhance her understanding of both parties' cases. The passage about which Dr Aung makes complaint was no exception. There is nothing in this point.
7. As to the third submission, as noted, the passage picks up the thrust of the Assessor's reasoning for her conclusions. That the clients consider that the reasoning is wrong does not suffice to establish a denial of procedural fairness.
8. As to the fourth submission, the clients' complaint that the Assessor misinterpreted, or perhaps putting the matter another way, relied or placed excessive weight upon communications after 7 September 2022 is a complaint about the Assessor's fact finding. That does not establish a denial of procedural fairness.
9. The fifth submission is associated with the second submission. Although initially Dr Aung claimed that she had been deprived of the opportunity of presenting evidence and submissions, it developed into a complaint about her being muted. It developed further when Dr Aung complained of bias.
10. All of these complaints could constitute a denial of procedural fairness and this Court can consider them.
11. There is no substance in Dr Aung's complaint of being deprived the opportunity to present evidence and make submissions. It is clear (amongst other places) from T 8-10 that the parties availed themselves to identify to the Assessor the evidence that they relied upon.
12. From T 13-19, Ms Lim, for the Practice, presented argument to the Assessor. From T 19-39, Julie Aung presented argument to the Assessor. Without any disrespect, it is pertinent to note (although Dr Aung did not refer to the passage) that Dr Aung's presentation posed challenges to the Assessor. Dr Aung repeatedly expressed that she was "not happy" (T 32, T 34), swore (T 32.40 and T 33.29), indicated that she was "angry" (T 35.19) and name-called her adversary (T 36.30). Dr Aung was in a difficult state and the Assessor asked her repeatedly to calm down (T 36-37).
13. This was the lead up to Dr Aung's accusations against the Assessor. She complained that the Assessor had 'provoked' her (T 37.19) and implied that she had not been neutral (T 37.43) and even appeared to lecture her (T 38.3).
14. It was not altogether clear whether Dr Aung complained about the Assessor imposing a time limit upon her presentation. Assuming that she did, there was no impediment to the Assessor doing so. Dr Aung had been presenting argument for a considerable time. At any rate, there was no clear identification of what more Dr Aung would have wanted to say that would make the imposition of a time limit practically unjust.
15. In relation to being muted, I agree with Ms Lim's submission that Dr Aung was muted at a point when the Assessor had stopped her (T 39.19) after having notified her of the time limit. From the point when Ms Lim resumed her argument, it is clear on the face of the transcript (T 40-43) that Ms Lim's presentation was interrupted and disrupted by Dr Aung, in a way which impeded the Assessor's comprehension of what Ms Lim was saying. The point of muting Dr Aung was to eliminate such disruption. Because the parties were appearing at the hearing by means of AVL, this caused no practical injustice to Dr Aung: she could still hear what Ms Lim was arguing and it appears (T 44.4) that noises emanating from where Dr Aung was positioned could be heard. There was nothing in the circumstance of muting Dr Aung which betokened an absence of impartiality or injustice. All it meant was that Dr Aung could not disrupt Ms Lim's presentation. The Assessor was drawn to that expedient as a means of asserting her control over the hearing and to limit distractions and disruptions to the orderly conduct of the proceeding before her.
16. But after Ms Lim had continued for a further while, the Assessor stopped her as well and returned to Dr Aung (T 49.9) who essentially dominated further argument until the delivery of reasons (which commenced at T 58).
17. I do not accept that Dr Aung was denied reasonable opportunity to present submissions to the Assessor. Nor, from my reading of the transcript, was there any proper basis for alleging bias (whether actual or apprehended).
18. Dr Aung appears to suggest that she was in such a state, after what had passed, that she was not capable of submitting her case. It is to be recalled however, that the task of a judicial officer is to provide reasonable opportunity to litigants to present their case; it is not to ensure that they do so to their best advantage. It is clear on the face of the transcript that the Assessor took steps to try to assist Dr Aung to present her case. She offered Dr Aung some breaks. She told her to calm down. I am not persuaded that she lacked reasonable opportunity to present the case for the clients.
19. As to the sixth submission, I do not accept that the Assessor did not give meaningful consideration to evidence or arguments in one of the proceedings. That strikes me as an unfair criticism of the Assessor. As it happens, both sides had to a large degree, eschewed any real distinction between the claim as against the company and the claim as against the personal clients. That is not surprising given that, in substance, the Practice acted for a family group. Argument and evidence in one proceeding was relevant to the other. Julie and Nyi Nyi Aung themselves prepared witness statements for both sets of proceedings which were identical. Most of the annexures to the case summaries of the Practice were identical (my impression was that the only real different was the content of the invoices). The issues were essentially the same in both proceedings. It was for the parties to identify material differences. In the Assessor's reasons, at T 58.16, 59.10, 61.48 and 65.46, the Assessor draws a clear distinction between the different types of clients. There was no failure to separately consider one class of client from another. There was no denial of procedural fairness in this respect.
20. As to the seventh submission, it is arguable, perhaps, whether an accountant's engagement to provide taxation services must be in writing. It is curious, however, that the clients did not object to paying an invoice in relation to the Practice's preparation of taxation returns for the 2021 financial year in the absence of such writing. Be that as it may, if there be any point in this, it is an error either purely of fact or possibly a combination of fact and law. It does not ground a complaint of denial of procedural fairness.
21. As to the eighth submission, this is another way of complaining that the Assessor made a factual finding which Dr Aung believed was contrary to the evidence (that is, her evidence). That does not ground a complaint of denial of procedural fairness.
22. As to the submission that she made in reply, this is a further complaint of fact finding. It does not sustain a complaint of denial of procedural fairness.
23. In the result none of the grounds of appeal, or the submissions purportedly directed to them, are made out.

Costs

1. By s 98 of the Civil Procedure Act 2005 (NSW), costs of a legal proceeding are in the discretion of the Court. "Costs" is defined as "costs payable in or in relation to the proceedings and includes fees, disbursements, expenses and remuneration" (Civil Procedure Act, s 3) Ordinarily in civil proceedings, costs follow the event (UCPR, r 42.1). Other things being equal, the Practice would be entitled to costs.
2. But the Practice was not legally represented. It has no entitlement to costs, in the sense of costs to compensating it for time spent preparing and conducting its case. It may, however, have an entitlement to an order that the clients pay to it an amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Practice had been legally represented, that the Practice had actually and reasonably incurred concerning the present proceedings: Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359 at [182]-[185]. However, the parties have not presently been heard on that question. I will give the parties the opportunity to submit why I should not make this order, or should make some alternative order.
3. In each of proceedings 2023/429238 and 2023/429214, the following orders are made: 1. The summons is dismissed. 2. The question of costs is reserved.
4. I further direct that: 1. If either party opposes the costs order indicated in paragraph [128], or proposes an alternative order, the party (the applicant) should supply short submissions (not exceeding 5 pages) to my Associate by 22 April 2024. 2. The other party (the respondent) should supply short submissions in response to my Associate by 26 April 2024. 3. In the event that no submission is received as per the first direction, an order for costs as indicated in paragraph [128] will be made. 4. In the event that there is a dispute about the costs order, the dispute will be determined on the papers.

Endnotes

1. A reminder of this limit was given in an email that I caused my Associate to send to the parties on 15 February 2024 at 11:17am, a copy of which is included in the Court file.
2. I have also drawn upon observations of McColl JA in Nominal Defendant v Saleh (2011) 57 MVR 412 (Beazley JA and Giles JA agreeing) at [16]-[27].
3. An application for judicial review of this decision was unsuccessful: Ejueyitsi v Western Sydney University [2023] NSWCA 126.
4. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [2].
5. I assume, without finally deciding, that an Assessor acting in the Small Claims Division of the Local Court meets that description. In McClymont v The Owners-Strata Plan No. 12139 (2009) 74 NSWLR 404, McCallum J (as her Honour then was) treated an Assessor as a 'judicial officer' at least for the purposes of Part 36 of the Uniform Civil Procedure Rules 2005 (NSW).

Amendments 19 April 2024 - Re-formatted footnotes 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: 19 April 2024