The hearing of this appeal was held as long ago as 16 August 2021.
At the conclusion of the hearing, we directed the appellant Pioneer International Pty Ltd (Pioneer) to give to the Tribunal and the other parties the sound recording of the hearing at first instance, a transcript of relevant parts of that hearing, and any further submissions in support of a submission that it was denied procedural fairness at the hearing at first instance. These documents were to be provided on or before 30 August 2021.
Due to difficulties Pioneer had with complying with that timetable, on 22 September 2021 we extended the time by which Pioneer was to provide those materials to 20 October 2021, and allowed the respondents to respond by 3 November 2021. In our directions, we stated that the time for compliance would not be extended again, save for exceptional circumstances.
On 21 October 2021, Pioneer filed a document responding to those directions.
We then published reasons for decision on 9 November 2021. We dismissed the appeal.
The reasons for decision were based on the assumption that Pioneer had not provided a copy of the sound recording to the Appeal Panel as directed.
It transpired that it had.
When we discovered this issue, we caused the Registry to send the following directions to the parties:
After the publication of reasons for decision on 16 August 2021 [1] (the Decision), the Appeal Panel became aware that the appellant Pioneer International Pty Ltd (Pioneer) had in fact lodged the sound recording of the hearing at first instance.
As the Decision proceeded on the basis that the sound recording had not been provided by Pioneer, the Appeal Panel considers that there may have been an irregularity for the purposes of s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act).
That section provides:
53 Amendments and irregularities
(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.
(2) Any such amendment may be made--
(a) at any stage of the proceedings, and
(b) on such terms as the Tribunal thinks fit,
but may only be made after giving notice to the party to whom the amendment relates.
(3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
As a result of that irregularity, the Tribunal considers that it may need to set aside the Decision. If it does, the consequence may be that the appeal will be allowed, and the matter remitted to the Consumer and Commercial Division of the Tribunal.
The Tribunal directs the respondent, on or before Monday 13 December 2021, to provide submissions to the Registry and the appellants directed to:
1 whether there is an irregularity for the purposes of s 53(4) of the Act.
2 if so, whether the Decision should be set aside.
The appellants may provide submissions in response on or before 20 December 2021.
The Appeal Panel proposes to make any further decision on the papers. If any party opposes that course it should address that issue in their submissions.
In Coomber v Butler [2019] NSWCATAP 194 the Appeal Panel stated at [25] that:
Section 53(4) may permit the Tribunal to set aside a decision if there has been a failure to comply with its obligations to afford natural justice which may constitute an irregularity: see Atkinson v Crowley [2011] NSWCA 194, per Basten JA at [13] where His Honour considered s 32(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which was in the same terms as s 53 of the NCAT Act.
Following those directions, the following submissions were received:
1. On 12 December 2021, submissions from Mr and Mrs Bannister (the Banisters), relevantly stating that they did not have "any further comments relating to the substance of the case";
2. On 14 December 2021, from the director of Bailair Pty Ltd (Bailair), Mr Shaun Bailey. In summary, he said that that the most blanched (which we take to mean balanced) and fair thing for all parties is for the decision to be set aside and for a new hearing to take place; and
3. On 20 December 2021, from Pioneer's General Manager Mr Haydock. In summary, he stated that "the fairest and most just action for all parties would be for the decision to be set aside and for a new hearing to take place".
We consider that our reasons of 9 November 2021, based as they were on an incorrect basis, constituted an irregularity and it is appropriate to set aside those reasons pursuant to s 53(4) of the Civil and Administrative Tribunal Act NSW (2013) (NCAT Act). We note that there was no real objection from the parties in us doing so.
We will now reconsider the appeal.
[2]
Background
Pioneer appeals from a decision of the Civil and Commercial Division of the Tribunal (Tribunal) of 21 May 2021 in matter HB 21/01383 (the Decision).
The Tribunal ordered Pioneer and Bailair to pay the Banisters $8,680.00 on or before 18 June 2021.
Pioneer's principal ground of appeal was they it been denied procedural fairness by the Tribunal in the conduct of the hearing at first instance.
For the following reasons, the appeal is allowed.
[3]
Preliminary
The hearing of matter HB 21/01383 took place by telephone on 20 May 2021. The Bannisters were present, as was Mr George Haydock, the General Manager of Pioneer.
The hearing of the appeal proceeded in the absence of Balair. Mr Bailey had sought an adjournment three days before the appeal on the basis of a medical appointment. As Balair could have nominated some other representative to attend the hearing, we decided to proceed in Belair's absence.
One of the principal submissions raised by Pioneer was that the hearing at first instance had been conducted unfairly, in that the procedure was confusing and neither it nor Balair was given the right to cross-examine witnesses. This is a difficult matter to prove in the absence of a transcript of the hearing or a sound recording of the proceedings. We were satisfied that Pioneer had made an expeditious application for a copy of the sound recording, but despite ordering it on 30 June 2021, it had not been provided prior to the appeal hearing on 16 August 2021.
When we heard the appeal on 16 August 2021, we indicated during the hearing that we proposed to allow Pioneer time to obtain the sound recording, prepare a transcript and to provide further submissions on the procedural fairness point, with the respondents having time to respond.
Accordingly, at the conclusion of the hearing, as noted above, we directed Pioneer to give to the Tribunal and the other parties the sound recording of the hearing, a transcript of relevant parts of the hearing, and any further submissions in support of a submission that it was denied procedural fairness on or before 30 August 2021.
As noted above, due to difficulties Pioneer had with complying with that timetable, on 22 September 2021 we extended the time by which Pioneer was to provide those materials to 20 October 2021, with the respondents to respond by 3 November 2021 and there was to be no further extension, save for exceptional circumstances.
We note that Mr Haydock provided some evidence to the Appeal Panel which was not before the Tribunal. This was a report of a mechanical engineer Mr David Grima dated 19 February 2019. Mr Bannister objected to the Appeal Panel reading this report (describing it as a "fabrication"), as the report predated the purchase and installation of the air conditioning unit by some six months.
We agree. The fresh evidence (that is evidence not before the Tribunal at first instance) can only be relied on if the evidence was not reasonably available at the time of that hearing. In circumstances where Mr Grima was an employee of Pioneer, and Pioneer filed no evidence at the hearing below, we do not give Pioneer leave to rely on that report at the appeal.
[4]
Grounds of Appeal
Pioneer's grounds of appeal, and the Bannisters' response may be summarised as follows.
First, the Banisters did not comply with the orders of the Tribunal of 24 March 2021, in that they did not give their documents to the appellants by 7 April 2021. This is denied by the Bannisters. Their documents were attached to their originating application, which was sent by the Tribunal to the respondents. In addition, they sent a further copy of the documents to each of the appellants by email on 11 March 2021.They filed no further documents pursuant to the directions of the Tribunal. They note that the respondents referred to their documents during the hearing.
Secondly, The Tribunal did not give Pioneer the right to cross-examine Mr Banister. This is denied by the respondents. They say there was "open and free" dialogue between the parties and the Tribunal at the hearing, with numerous questions "back and forth".
Thirdly, "the total hearing was very confusing and "failed to comply with procedural rules in relation to the commencement or conduct of the proceedings". The Bannisters say they cannot offer any comments on this submission.
Fourthly, on 24 March 2021 during a conciliation conference Pioneer requested for the hearing not to be by telephone as Mr Haydock "found it difficult to express himself properly by phone and explained that he would be at a disadvantage".
Fifthly, the appellants were denied procedural fairness.
Sixthly, the Decision was infected by the Member's "bias", manifested in in her questions and conduct.
We will refer to these grounds respectively as Grounds One, Ground Two and so on.
We note that Balair appeared to support some of the grounds of appeal. Its General Manager Mr Shaun Bailey provided written submissions to the Tribunal on 7 June 2021. In summary, Mr Bailey submitted that:
the hearing was very confusing;
the Member was biased against him and Pioneer. This bias was manifested in the Member's manner and tone, her manner "really unsettled Mr Bailey";
there was no questioning from Mr Banister and all of the questioning was from the Member, "surely this is not fair"?
Mr Haycock asked during conciliation if the hearing could take place "in a proper tribunal room" and not over the phone as "as it is very hard for all sides to get [their] point across over the phone especially when [the evidence] has a technical basis to it".
"To me it felt like the member was running the case for Mr Banister".
[5]
Nature of an appeal
Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
[6]
A question of law
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
A denial of procedural fairness is a question of law: Prendergast at 13; Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee[2003] FCAFC 143 at [8].
As the appellants have raised a question of law, leave is not required.
[7]
Consideration
We consider that there is no merit in Grounds One, Four and Six, for the following reasons.
[8]
Ground One
We are not satisfied that Ground One establishes any error made by the Tribunal. As we understand matters, all documents had been provided to the appellants, and we are satisfied that the Bannisters did comply with the orders of the Tribunal of 24 March 2021. Their documents were attached to their originating application, which was sent by the Tribunal to the respondents. In addition, they sent a further copy of the documents to each of the appellants by email on 11 March 2021. They filed no further documents pursuant to the directions of the Tribunal. They note that the respondents referred to their documents during the hearing.
[9]
Ground Four
As to Ground Four, since the start of COVID-19 more than one year ago, the Tribunal has not conducted in person hearings. Literally thousands of hearings have been conducted by telephone. We see no special disadvantage to the appellant.
[10]
Ground Six
Ground Six raises another aspect of procedural fairness, namely the "bias rule". As has been stated by the Australian Law Reform Commission, Traditional Rights And Freedoms - Encroachments By Commonwealth Laws (ALRC Report 129), 2016 (footnotes omitted):
4.20 Procedural fairness traditionally involves two requirements: the fair hearing rule and the rule against bias. The hearing rule requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests. In Kioa v West [(1985) 159 CLR 550], Gibbs CJ said that the 'fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power'. The rule against bias ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision.
14.21 The content of the rule against bias is flexible, and determined by reference to the standards of the hypothetical observer who is fair minded and informed of the circumstances.
Parties to litigation are entitled to have their matters determined by Courts and Tribunals which are free from bias. This aspect of procedural fairness extends to apprehended or ostensible bias. Apprehended bias flows from the legal principle that "justice should not only be done, but should also be seen to be done": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
In Michael Wilson & Partners Limited v Nicholls (2011) 282 ALR 685, the High Court of Australia confirmed the need to precisely articulate the connection between the events said to give rise to the apprehension of bias and the possibility of the decision-maker departing from impartial decision-making.
This is a serious matter to raise, and appears to be based solely on the fact that the Tribunal member made rulings against Pioneer. We see no substance in the Pioneer's complaint.
[11]
Grounds Two, Three and Five
Grounds Two, Three and Five can be considered together. We have now had the benefit of the appellant's paraphrasing of the dialogue at the hearing, and received the sound recording. Having listened to the sound recording, we accept that the procedure was not outlined to the parties at the commencement.
We also accept that the Tribunal Member asked Mr Bannister if he wished to cross-examine Mr Bailey, asked Mr Bannister if he wished to cross-examine Mr Haydock, but it at no point asked Mr Bailey or Mr Haydock if they wished to cross-examine Mr Bannister. We agree that this was a lack of procedural fairness.
[12]
Conclusion
In summary, we accept that Pioneer was denied procedural fairness in that it was not afforded the opportunity to cross-examine the other parties. As the Appeal Panel has stated in Nannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99:
28. It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party's witness may, in some situations, constitute a denial of procedural fairness: see e.g. Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NDSWCATAP 143 ("Shardlan") at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21] citing Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30].
29. Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act: Shardlan at [21]; Lee v Cha [2008] NSWCA 13 at [48] (per Basten JA). This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party's witnesses was an error of law (see, for example: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 at [9], [44]; Renda v Wu [2016] NSWCATAP 238 at [2], [62]).
In Nannis, the Tribunal at first instance did advise the parties at the outset of the hearing that they would have an opportunity to "ask questions about evidence" and to "test the evidence". Even so the Appeal Panel found that the Tribunal was in error in not allowing cross-examination and/or failing to allow the appellants a chance to do so.
In this appeal, regrettably, the Tribunal did not allow the appellant the opportunity to cross-examine and did not advise the parties at the outset of the hearing that they would have an opportunity to cross-examine.
In circumstances where the respondent had been allowed the opportunity and the appellant had not, it seems to that this failure constitutes a denial of procedural fairness.
Consequently, the Decision should be set aside and the matter remitted for rehearing by a differently constituted Tribunal.
It will be a matter for the Tribunal to determine whether the parties are allowed to adduce further or other evidence.
[13]
Other
We understand the Tribunal process may have been difficult for the parties, none of whom were legally represented, to understand. The delay in the final publication of these reasons is regrettable.
Nevertheless, we must make our decisions according to law.
This matter has had a significant history, and while the amount involved is no doubt significant to the parties, it is a modest amount by reference to the monetary jurisdiction of the Tribunal.
We encourage the parties to seek to reach a common-sense consensual agreement for the resolution of their dispute, so to avoid a further hearing and, potentially, a further appeal.
[14]
Orders
The Appeal Panel orders:
1. The reasons for decision of 9 November 2021 are set aside.
2. The appeal is allowed.
3. The orders made on 21 May 2021 in matter HB 21/01383 are set aside and the proceedings remitted for rehearing by a differently constituted Tribunal.
4. The remitted proceedings are to be listed for directions as soon as possible.
[15]
Endnote
We note that the date of 16 August 2021 is an error, that was the date of the appeal hearing, The date of the published reasons was 9 November 2021. Nevertheless, nothing turns on this error and the meaning of the directions is clear.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 December 2021
Parties
Applicant/Plaintiff:
Pioneer International Pty Ltd
Respondent/Defendant:
Banister
Legislation Cited (2)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)