S & G Homes Pty Ltd t/as Pavilion Homes v Owen

We will now expand the detail of a number of the situations summarised above. We will continue to refer to the appellant as "the appellant" or "the builder" and to the respondent as "the respondent" or "the proprietor".

1. Details of the claims in the CCD and the hearing in the CCD on 19 November 2014 are conveniently presented in the decision under appeal at [1] to [13]: 1. On 20 June 2013 the applicant (home owner) filed an application in the Tribunal seeking orders against the builder to rectify defective work or in the alternative, to have damages paid to him in the sum of $114,870.00. 2. On 4 April 2014 the respondent (builder) filed in the Tribunal a cross-claim in the sum of $205,394.31. The claim was for unpaid invoices, $59,794.31; tiling variation, $4,700.00; interest, $104,440.08; debt collection fees, $7,175.33 and legal fees, $29,274.50. 3. Both matters were listed for directions several times to have them prepared for the hearing. 4. On 19 November 2014 both matters were listed for hearing. The respondent was unrepresented. His solicitors advised the Tribunal on 10 November 2014 that they were no longer acting for him. The respondent advised the Tribunal on 18 November 2014 that he will be representing himself at the hearing. 5. At the hearing the applicant sought to amend his claim in the sum of $500,000.00. 6. My recollection is that the issue of whether the Tribunal had jurisdiction to hear this matter was vehemently contested by both parties. 7. The applicant gave sworn evidence. He was examined in chief by his Counsel, Mr de Meyrick. 8. The respondent attempted to cross-examine the applicant. The cross-examination was in the main a series of statements and arguments by the respondent advancing his own case that he did not perform any work after 17 June 2006, after the applicant took early possession of the premises. 9. It became apparent at the hearing that if the applicant failed on the issue of jurisdiction he may have a remedy at common law available to him in another forum. 10. It was agreed that the possible future costs and the risk of an adverse outcome warranted a resolution of the dispute on the day. 11. I also recall that I kept a detailed set of notes of the applicant's sworn evidence. These notes have been misplaced from the file. 12. The recording of the proceedings on a lap top computer, using the air card also failed. 13. The matter was resolved in the terms stated in the agreement.
2. As to the agreement referred to, the first appeal decision (S & G Homes Pty Ltd t/as Pavillion Homes v Owen [2015] NSWCATAP 190) at [6] sets out a document headed "Terms of Settlement" signed by the parties on 19 November 2014: Between Shane Owen ("Owner") and S & G Homes P/L t/as Pavillion Homes ("Builder") 1. Application and cross application stood over for 3 months. 2. Builder to pay owner $85,000 inclusive of costs by 14 January 2015. 3. Upon the payment of the above sum on or before the due date the builder and owner agree to the withdrawal and dismissal of their respective claims and release each other from all claims. 4. Parties agree to execute a formal deed of release. (signed) Shane Owen (signed) Boris Planinac on behalf of S & G Homes P/L
3. In the first appeal decision at [7] the orders made by the Tribunal on 19 November 2014 are noted thus: 1. By determination of member, on 19 November 2014 the hearing was adjourned to a date to be fixed by the Registrar. 2. By consent, the application and cross application stood over for 3 months. 3. Builder to pay Owner $85,000 inclusive of costs by 14 January. 4. Upon the payment of the above sum the Builder and Owner agree to the withdrawal and dismissal of their respective claims and release each other from all other claims. 5. Parties agree to execute a formal deed of release.
4. The appellant brought the first appeal against the decision of 19 November 2014 on three grounds, described in the first appeal decision at [23] thus: The first ground was that there was no "agreed settlement" between the parties as required by s 59. The second ground was that the Tribunal could not have been satisfied that it had power to make the consent orders in the absence of any finding on the contested out of time issue. The third ground was that the Tribunal could not have been satisfied that it had power to make the consent orders in the absence of any finding as to whether the matter had been investigated by the Commissioner for Fair Trading.
5. The first ground of appeal was rejected for reasons summarised in the first appeal decision at [29] thus: In the absence of any evidence to the contrary, the signed Terms of Settlement is probative evidence that the parties had reached an "agreed settlement". We do not accept the builder's submission that the only agreed settlement would have been the Deed of Release mentioned in the terms of settlement had it been executed. The agreement that "Builder to pay Owner $85,000 inclusive of costs by 14 January" is not conditional upon the execution of a Deed of Release. We find that there was an agreed settlement. This ground of appeal has not been made out.
6. The Appeal Panel's decision in relation to the second ground of appeal is encapsulated in the first appeal decision at [54] thus: The signing of the terms of agreed settlement does not absolve the Tribunal of the requirement to consider whether it has the power to make the consent orders. The combined effect of s 59(1)(b) of the NCAT Act and s 48K of the Home Building Act is that where there is a dispute as to time limits, before making consent orders the Tribunal must consider whether it is "satisfied" that the application has been made within the time limits prescribed in s 48K. We are of the opinion that the Tribunal has erred by failing to take into account the matters in s 59(1)(b) or by making a decision which lacks an "evident" justification. The justification for make the consent orders was not evident in circumstances where the Tribunal had heard but not determined a contested hearing as to its jurisdiction.
7. Ultimately the third ground of appeal in the first appeal was disposed of in the first appeal decision at [66] in the following terms: …S 48J of the Home Building Act is not a pre-condition to the Tribunal's jurisdiction to determine home building claims. The Tribunal's discretion in s 59(1)(b) will not miscarry if it fails to be satisfied that s 48J has been complied with before making a consent order.
8. Under the heading "Conclusion", the first appeal decision at [67] prefaced the orders which it made as follows: Section 59(1)(b) of the NCAT Act gives the Tribunal discretionary power to make consent orders if it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. Where there has been a dispute as to the Tribunal's powers, the Tribunal is bound to consider whether it is satisfied that it has power to make the order and to make that decision reasonably in the sense referred to in Minister for Immigration and Citizenship v Li [2013] HCA 18. If it is not so satisfied it may dismiss the application: NCAT Act s 59(2). In particular, if there is a dispute as to whether a matter has been lodged within the time limits set out in s 48K of the Home Building Act, the Tribunal must direct its mind to that matter before making consent orders and must not make an order that is unreasonable. That is not the case in relation to a dispute as to whether there has been compliance with s 48J of the Home Building Act. Because that provision does not relate to the power of the Tribunal to make a decision, the Tribunal is not bound to consider whether the proposed consent orders comply with that provision.
9. After reference at [68] to s81 of the NCAT Act dealing with the determination of internal appeals including the power of an Appeal Panel to remit the whole or any part of a case to be reconsidered by the Tribunal, the Appeal Panel then made, at [69], the following orders: 1. The time for filing the notice of appeal is extended to 23 December 2014. 2. Leave is granted to appeal against an interlocutory decision. 3. Leave is granted for the appeal to be made on grounds other than a question of law. 4. The decision under appeal is set aside. 5. The following issues are referred to the Tribunal for reconsideration in accordance with the Appeal Panel's reasons for decision. (a) whether the Tribunal should exercise its discretion under s 59(1)(b) of the Civil and Administrative Tribunal Act 2013 to make consent orders in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement; and (b) if not, whether the Tribunal should exercise its discretion under s 59(2) to dismiss the application.
10. The decision of 8 April 2016 was preceded by two directions hearings, the first on 2 October 2015 and the second on 1 December 2015.
11. Directions were made on 2 October 2015 as follows: 1. By Determination of member, on 02 October 2015 the hearing was adjourned to a date to be fixed by the Registrar. 2. By consent, the applicant (builder) shall provide to the respondent (homeowner) and the Tribunal, either in person or by post, written submissions as to whether the Tribunal has jurisdiction to entertain the homeowners application for damages and any additional evidence in support, on which the applicant intends to rely at the hearing by 23 October 2015. 3. By consent, the respondent (homeowner) shall provide to the applicant (builder) and the Tribunal, either in person or by post, written submission in reply, on which the respondent intends to rely at the hearing by 13 November 2015. 4. The applicant is to file and serve any response to the respondent's reply on or before 20 October [sic November?] 2015.
12. There is a measure of controversy between the parties concerning what occurred on 1 December 2015. We understand that that there had been filed on behalf of the appellant documentation from sub-contractors who had worked on the property and that on behalf of the respondent there had been filed an affidavit by the respondent in response; none of that material was produced at the appeal hearing. We were told that Counsel for the respondent attended on that occasion and, while initially there was no appearance on behalf of the appellant, telephone contact was made with the appellant's solicitor and Counsel for the appellant later appeared. Apparently, the Tribunal Member rejected an application by Counsel for the appellant that further material and submissions be filed and that there be a hearing; he ruled that the matter would be decided on the papers. No record of those directions was produced at the appeal hearing.
13. In the decision under appeal the Member detailed the proprietor's case at [19] to [29] and the builder's case at [30] to [40]. The Member from [41] onwards canvassed the differences between the parties' respective cases and expressed his findings concerning them. Principal among those differences were those concerning the respondent's contentions, which the appellant disputed: first, that he and his wife had moved into occupation of the house on 17 June 2006 by arrangement with the appellant as they had sold their house which they had to vacate and that he had changed the locks on the house only because the keys to the house had been misplaced by the builder or his sub-contractors; and secondly, that the appellant or the appellant's sub-contractors continued to do some work on the house until about November 2006. The views expressed by the Member included the following paragraphs of the decision: 53. I had before me two competing versions of events whether there was any building work done by the respondent on the applicant's house after 17 June 2006. 54. I prefer the applicant's sworn evidence that the respondent's tradesmen did carry out work on the dwelling after 17 June 2006. The correspondence between the parties indicates in support of the sworn evidence that the relationship has not broken down altogether between the parties. I refer to the respondent's letter to the applicant on 23 June 2006; the applicant's letter to the respondent on 21 August 2006; the respondent's letter to the applicant on 28 August 2006. 55. I have ascribed little weight to the respondent's evidence contained in the letters written by his tradesmen and suppliers. The letters seem to me to be self-serving. The tradesmen state, among other things, that their work was not defective and it was carried out in accordance with the applicant's instructions. They also state by way of a conclusion that the applicant has taken unauthorised possession of the premises in May/June 2006. … 60. I find on the evidence before me that the respondent was not locked out of the premises. He continued to visit the site to negotiate an outcome of the dispute and to do work. … 62. I find on the balance of probabilities that the respondent performed work such as plumbing, electrical, painting and roofing at the applicant's residence after 17 June 2006 to November 2006. I accept the applicant's evidence that the builder realised in 2007 that it would be too costly and difficult to complete the work at the residence and that therefore the final payment would not be sought from the owner. Thereafter the builder did not return to the property until 2014, when he had to prepare a response to the applicant's application. 63. The applicant's application was filed in the Tribunal on 20 June 2013. Therefore, the applicant's application was filed within seven years of the last date the respondent worked on the site, in time then stipulated by s48K(7) of the Home Building Act. The respondent therefore did not establish that on the balance of probabilities the applicant's application was out of time and it could not be determined by the Tribunal. … 69. I find that I have power by virtue of s59(1)(b) of the Civil and Administrative Tribunal Act to make a decision in this matter in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 70. Accordingly, the orders above are made as agreed between the parties on 19 November 2015.
14. The orders made in the decision under appeal were expressed thus: The Tribunal has jurisdiction to hear and determine this matter. 1. By consent, the application and cross application are stood over for 3 months. 2. Builder to pay the Owner $85,000.00 inclusive of costs by 6 May 2016. 3. Upon the payment of the above sum the Builder and the Owner agree to the withdrawal and dismissal of their respective claims and release each other from all other claims. 4. Parties agree to execute a formal deed of release.

Appeal

1. A Notice of Appeal was lodged on 6 May 2016 in respect of the decision under appeal. It specified as grounds of appeal: 1. The Tribunal erred in refusing to list the matter for the parties to cross-examine and make submissions (breach of procedural fairness). 2. The Tribunal erred in accepting the evidence of Mr Owen without any evidence to support his assertions. 3. The Tribunal erred in rejecting the Builder's evidence on the basis that the evidence was 'self-serving'. 4. The Tribunal erred in finding that works were undertaken at Mr Owen's home between 17 June 2006 to November 2006. It sought an order that the matter be remitted to a Member of the Tribunal other than Member Vrabac for determination as to whether the respondent commenced proceedings within the limitation period. Leave to appeal was also sought and the following reasons were specified as to why the Appeal Panel should grant leave to appeal: The Member refused the Builder's application for an oral hearing. Without any cross-examination the Tribunal made adverse findings about witnesses who had given sworn evidence on behalf of the Builder. The decision of the Tribunal was not fair and reasonable. The decision of the Tribunal under appeal was against the weight of the evidence. The Builder was not afforded procedural fairness. In respect of those reasons it was asserted that the decision was not fair and equitable and that the decision was against the weight of evidence.
2. During the interlocutory stages of the appeal the order that the appellant pay to the respondent $85,000 inclusive of costs by 12 June 2016 was stayed until further order of the Tribunal.
3. The principal written submissions of the appellant in support of the appeal may be summarised thus: 1. While on 1 December 2015 the Member rejected the appellant's submissions that a hearing should take place, the Tribunal did not make an order dispensing with a hearing, such that "the decision of the Tribunal is invalid". 2. The refusal by the Tribunal to proceed to a hearing constituted a breach of procedural fairness and resulted in: "a. a significant prejudice as the Appellant was not provided with the opportunity to cross-examine the Respondent or provide oral submissions regarding the alleged inconsistencies of the Respondent's allegations; and b. adverse findings being made in respect of each of the witnesses who provided affidavits, relied upon by the Appellant, without those witnesses having been given the opportunity to be heard." 3. It was not appropriate for the evidence adduced and submissions made on 19 November 2014 to have been taken into account on the issue of jurisdiction. 4. The directions made on 2 October 2015 permitting additional evidence made a decision on the papers inappropriate. 5. The proceedings at first instance were effectively part heard such that the power under s 50 of the NCAT Act to dispense with a hearing was no longer available.
4. At the hearing of the appeal, we discerned Counsel for the appellant to add as a principal submission one to the effect that as there had been no finding on 19 November 2014 that the proprietor's claim complied with the relevant limitation provision in the Home Building Act 1989 ("HBA"), the Tribunal would not have had the power then to have made a decision in the terms of the agreed settlement; and that situation continued to obtain thereafter such that those findings were not available subsequently to be made whether by the decision on 8 April 2016 or at all.
5. We add that at the appeal hearing Counsel for the appellant disclaimed any reliance on a set of submissions which Mr Planinac (a director of the appellant) had lodged personally on behalf of the appellant.
6. The submissions on behalf of the respondent take issue with the appellant's arguments. In particular they contend that: 1. On 19 November 2014 before the proceeding went into a mediation process with the consent of the parties, the Member heard evidence on the time limitations arguments raised as jurisdictional points. 2. What was referred back by the first appeal decision was a narrow issue, namely, the jurisdictional point relating to the respondent's claim. A finding only on that issue was required as it was on that issue alone that the appropriateness of an order concerning the $85,000 depended. 3. The procedure to be adopted before making a decision on the remitted issue was a matter for the Member. The Member heard argument about that issue on 1 December 2015 before deciding on the procedure to be adopted. 4. The witnesses for the builder had not attended the hearing on 19 November 2014. The right to procedural fairness applies for the benefit of a party not of the party's witnesses.

Consideration

1. Section 80(2) of the NCAT Act provides that an internal appeal may be made in the case of an interlocutory decision of the Tribunal at first instance, with the leave of the Appeal Panel, and in the case of any other kind of decision of the Tribunal at first instance as of right on any question of law, or with leave of the Appeal Panel on any other grounds.
2. As was pointed out in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] it is "necessary for the notice of appeal to identify precisely the particular questions of law."
3. A helpful, but not exhaustive, list of potential questions of law was given in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would make it.
4. Clause 12(1) of Schedule 4 of the NCAT Act provides that an application for leave to appeal from a decision of the Consumer and Commercial Division of this Tribunal may be granted: …only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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).
5. In relation to that clause, in Collins v Urban [2014] NSWCATAP 17 at [80] an Appeal Panel of this Tribunal, after a review of a number of cases and by way of summary of relevant general principles, said that: "Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstance referred to in cl 12(1)(a), (b) or (c) where there is a "significant possibility" or "a chance which was fairly open" that a different or more favourable result would have been achieved for the appellant had the circumstance referred to in para (a) or (b) not occurred or if the fresh evidence at para (c) had been before the Tribunal as first instance." And similarly at [84] the Appeal Panel said that: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact … Ordinarily it is appropriate to grant leave to appeal only in matters that involve: issues of principle; questions of public importance or matters or administration or policy which might have general application; or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed …
6. The grounds of appeal and the grounds for leave to appeal are stated in similar terms, and to similar effect, in the Notice of Appeal. The first ground of appeal, alleging a breach of procedural fairness, would involve a question of law but the other three grounds of appeal raise only issues of fact. It is convenient to deal with the various matters raised by the appellant in the Notice of Appeal and in submissions, together and by reference to three dates: 1. 17 June 2015, being the date of the first appeal decision; 2. 1 December 2015, being the date of the second directions hearing in the remitted proceedings; and 3. 8 April 2016, being the date of the decision under appeal.
7. 17 June 2015 was the date of the first appeal decision. That decision is explained shortly, but sufficiently for present purposes, at [5] to [10] of this decision. The appellants' submissions in the present appeal raise an issue concerning the first appeal to the effect, we understand, that it was no longer appropriate for the Tribunal to decide whether it had jurisdiction (on account of the limitation provision in the HBA) to make consent orders in the terms of the agreed settlement as it had failed to do that on 20 November 2014 (see in particular [19] above in this decision).
8. Order 5 in the first appeal decision, particularly when read in the context of [54] of the first appeal decision (see [7] above in the present decision) and of [67] of the first appeal decision (see [9] and [10] above in the present decision), makes it clear in our opinion that there was being remitted to the Tribunal the issue whether the Tribunal had power to make a decision in accordance with the agreed settlement, having regard to the time limits set out in s48K of the HBA. It follows therefore that notwithstanding that it had not dealt with that issue on 20 November 2014, the Tribunal had jurisdiction to deal with that issue on remission. We add that we do not discern this ground to have been raised in the Notice of Appeal. We can see no merit in it.
9. On 1 December 2015 a second directions hearing took place and following that the Member dealt with the matter on the papers, as explained above in this decision at [13]. The appellant disputes the propriety of this outcome on 1 December 2015 on various asserted bases which we endeavour to put concisely as follows: 1. It was not open to the Member to deal with the matter on the papers as: 1. he had not made an order dispensing with a hearing; and 2. the proceedings before him were part heard. 1. The decision to deal with the matter on the papers constituted a denial of procedural fairness and/or was not fair and equitable in particular for the following reasons: 1. it denied the appellant the opportunity to cross-examine the respondent; 2. it made inappropriate any findings adverse to the appellant and his witnesses; 3. it was inappropriate on account of the directions of 2 October 2015 permitting additional evidence; 4. it was inappropriate to the extent that it permitted the evidence adduced and submissions made on 19 November 2014, to be taken into account.
10. Like the issue we have dealt with at [28] and [29] above in this decision, the matters referred to in sub-paragraph (a) of [30] above, raise questions of law as to jurisdiction. Section 50 of the NCAT Act provides: (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order; and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
11. As we have explained above in this decision at [13], no record is available of the directions made on 1 December 2015. It is clear, however, that the submission then made on behalf of the appellant that there be a hearing was rejected and that the matter was thereafter decided on the papers. We see, therefore, that the s 50 procedure was invoked and that effectively an order dispensing with a hearing was made, albeit without formality. As to the appellant's submission that the proceedings were part-heard and therefore could not then be dealt with on the papers, what we have said in this decision above at [29] is relevant. What was then to be decided was the remitted issue as to the power of the Tribunal to make the decision which it had previously made and which was otherwise upheld by the first appeal decision. The hearing in respect of the remitted issue would have been new or discrete. We see no reason why the remitted issue would not constitute "proceedings" within s 50. In our opinion, these arguments on jurisdiction have not been made out.
12. The complaints which we have outlined in paragraph (b) of [30] above need to be considered in the context of the decision on 1 December 2015 to deal with the matters on the papers being one made at a directions hearing and after Counsel for the appellant had been heard on his position that such a decision should not be made. Considerations of case management and the exercise of a discretionary power arise.
13. The decision was made during a process of case management. Case management is an important consideration in this Tribunal particularly in the CCD where the lists are large and busy. The High Court spoke of case management in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Marketing Pty Ltd (2013) 250 CLR 303 at [51]: In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
14. Section 36 of the NCAT Act bears on case management, particularly: (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the sub-matter of the proceedings.
15. Section 38 also relevantly provides: (1) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
16. As to the exercise of discretionary power, the High Court said in House v R (1936) 55 CLR 499 at 504 in the plurality judgment: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles." That judgment continued: "It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
17. The complaints the appellant noted in sub-paragraphs b(i) and b(ii) of [30] above raise fairness considerations which are particularly relevant to the rule in Browne v Dunn (1893) 6 R 97. Forbes, Justice in Tribunals 4th edition at [12.49] says of that rule: "According to the rule in Browne v Dunn a party who intends to ask a Court to reject a witness's evidence should normally challenge that evidence in cross-examination and give the witness an opportunity to respond. This rule has been treated as a matter of natural justice in tribunals where oral evidence is received and cross-examination allowed." Here, on account of the Tribunal dealing with the matter on the papers, those considerations did not apply as such. Nevertheless, the general fairness of the situation remains as an issue.
18. We see a measure of inconsistency between the complaints of the appellant noted in sub-paragraphs (b)(iii) and (b)(iv) of [30] above. The direction of 2 October 2015 referring to "additional evidence" clearly enough indicated that previous, and additional, evidence would be taken into account. It is not exceptional in those circumstances that such evidence was taken into account.
19. An over-arching factor relevant to 1 December 2015 is that such orders and directions as were made on that day would amount to "interlocutory order(s)" under the NCAT Act and as such would have been susceptible to an application for leave to appeal. No such application was made.
20. In our opinion none of the complaints raised by the appellant concerning 1 December 2015 has been made out. In particular we see what happened at that direction hearing as having been consistent with the principles of case management and not warranting review on the basis of House v R. Nor was there in our opinion any sufficiently relevant denial of fairness.
21. The decision under appeal was published on 8 April 2016. Apart from the issues of fact raised in the grounds of appeal in the Notice of Appeal we have now sufficiently dealt with all matters raised by the appellant in support of the appeal and have done so adversely to the appellant. There was evidence before the Tribunal on which the disputed findings of fact could have been made. We are not persuaded that any case has been made out by the appellant to warrant a grant of leave to appeal in respect of those issues of fact or any other matter put forward on behalf of the appellant.

Conclusion

1. For the reasons set out above, the appeal and the application for leave to appeal must be dismissed.
2. The Appeal Panel makes the following orders: 1. The appeal is dismissed. 2. The application for leave to appeal is dismissed. 3. The decision under appeal is affirmed. 4. The stay of the decision under appeal is removed. 5. Any application by the respondent for costs of this appeal is to be made by filing and serving on the appellant written submissions within 14 days after publication of this decision and the appellant is to file and serve on the respondent written submissions in reply within 14 days after service on the appellant of the respondent's submissions. Any such application will then be decided on the papers. 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 September 2016