Simcoe v Bate

Whether there was an error on a question of law

The appellant is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12].
Section 38(5) of the NCAT Act, and the general law rules of procedural fairness, require that the Tribunal ensure that each party to proceedings in the Tribunal has had a reasonable opportunity to appear and put their case before the Tribunal. To determine a matter in the absence of a party, the Tribunal must be satisfied that the party had notice of the hearing. The issue in the appeal is whether, in proceeding in the absence of Mr Simcoe on 26 November 2018, there was a denial of procedural fairness. If established, that would be an error of law: Prendergast at 12.
The central contention in the appeal is Mr Simcoe's position that he received no notice of the hearing of 26 November 2018 and that the Tribunal should not have proceeded in his absence.
In the exercise of its power conferred by s 38(2) of the NCAT Act to "inquire into and inform itself on any matter" as it thinks fit, the Appeal Panel obtained the Divisional file in proceedings HB 18/43363. That file contains the initiating application and correspondence from NSW Fair Trading as to Mr Bate's attempts to resolve the dispute with Mr Simcoe, the Notices of Hearing, and the Notice of Order dated 26 November 2018. The Notice of Hearing was dated 26 October 2018, addressed to Mr Simcoe at xxx Yarramalong Road Wyong Creek. The Notice included the statement that "the Tribunal may decide the matter in your absence", and advised that while the parties were not required to bring witnesses, they "should bring with you all relevant documents or materials to support your case". The Appeal Panel invited Mr Simcoe to comment on the Notice, and he confirmed that that was his address, and stated he had received nothing by post or email. The Notice of Order dated 26 November 2018 was addressed to Mr Simcoe at his postal address.
Rule 13 of the Civil and Administrative Tribunal Rules 2014 (the Rules) provides as a manner of service: (2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body: (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body: (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or
Rule 13(4) of the Rules provided at the time the notice was posted that the time at which it was taken to be served was at the end of the fourth working day after the date on which the notice or document was posted to the person. Rule 13(4), as amended with effect from 21 December 2018, now provides for seven working days. Even on the latter calculation, the Notice of hearing was taken to be served well before the hearing of 26 November 2018. There is no indication in the file that the Notice was returned to the Tribunal unable to be delivered.
Rule 35 of the Rules relevantly provides: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if: (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. …
The Tribunal Member could proceed with the hearing in the absence of Mr Simcoe if satisfied that he had been properly served with notice in accordance with rule 13, and if satisfied that justice required the matter be dealt with in his absence. The Notice of listing was posted to the address provided by Mr Bate, and which was confirmed by Mr Simcoe as his address. There is no indication on the Division file, for example undelivered mail returned to sender, that there was any reason to consider that Mr Simcoe may not have received the notice. The sound recording of the hearing is not before the Appeal Panel. The Tribunal Member recorded her satisfaction on both matters required by rule 35 of the Rules in her reasons. The Appeal Panel is satisfied that the Tribunal was entitled to proceed with the hearing in Mr Simcoe's absence.
The issue is whether in doing so he was denied a reasonable opportunity to be heard or otherwise have his submissions considered.
As noted in Troy Hood t/as UR Place Landscape v Rutten [2016] NSWCATAP 250, it is relevant that Mr Simcoe had an opportunity to apply to have the Tribunal's decision set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013. Reg 9 provides: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: … (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
An application under reg 9 needed to be made within 7 days after the decision was made (subject to the possibility of extension of time), and could not be made if an internal appeal against the decision "has been lodged or determined": reg 9(5)(a).
Mr Simcoe did not avail himself of the set aside procedure. Information on the set aside procedure is available on the NCAT website, under "Decisions and Orders", as is information on internal appeals. Had Mr Simcoe applied under reg 9 he would have been required to establish that not only that he was absent from the hearing, but that his absence resulted in his case not being adequately put to the Tribunal, and that the Tribunal should exercise its discretion to set aside the decision: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65. That decision confirms that the Tribunal would need to address whether there was a real likelihood that it would be unjust to let the decision stand, and that would only be likely to result if Mr Simcoe an arguable defence or arguable case that a different decision could have been reached. Relevant considerations would be why he was absent, and whether he had a reasonable opportunity to be heard or have his submissions considered, and whether he had an arguable defence or case that a different decision could have been reached. The Appeal Panel accepts that Mr Simcoe was not aware of the set aside procedure: however, that information was readily available to him.
Differently constituted Appeal Panels have considered the question of the circumstances in which an appellant who has failed to appear at a hearing can establish a breach of procedural fairness, in the context of the legislative framework applicable to matters in the Consumer and Commercial Division which includes rule 35, and reg 9. In Hood v Rutten [2016] NSWCATAP 250 the Appeal Panel held: 5. It is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. Where notice of a hearing has been given, it will be necessary for an appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing. In such cases it may be appropriate for the appellant to rely upon evidence that was not before the Tribunal at first instance, in order to prove the breach of procedural fairness. The Appeal Panel noted as follows in Waters v Waghorn [2016] NSWCATAP 247 at [27] -[34], [36]: Procedural Fairness [27] The Tribunal has a duty to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence.
The issue in Waters v Waghorn [2016] NSWCATAP 247 was the refusal by the Tribunal of an adjournment sought on medical grounds on the basis that there was no medical evidence supporting the application. The Appeal Panel considered the circumstances in which it might be appropriate to admit on the appeal evidence that was not before the original decision maker, in that case medical evidence, and held: … [33] What emerges from a review of authorities is that, in order to demonstrate breach of procedural fairness, it is necessary to point to something outside the control of the party, which led to the denial of procedural fairness. It would not, for example, be sufficient if the party, having notice of the hearing, simply decided to not attend the scheduled hearing. [34] An appeal on the grounds of breach of procedural fairness is unlikely to succeed when the party had notice of his or her unavailability and through contumelious or dilatory conduct failed to appear. Where a party becomes aware of his or her unavailability for a scheduled hearing, it is appropriate to seek an adjournment and put forward appropriate evidence to justify the application for an adjournment. …
The circumstances in Hood v Rutten were similar, and the Appeal Panel in that case concluded, based on the additional medical evidence provided, that the appellant had a compelling reason not to attend the hearing and that by holding the hearing without him he was denied an opportunity to present his case. In Tachnat Pty Ltd v Farag [2018] NSWCATAP 67 the Appeal Panel allowed an appeal where a party had been unwell and had attempted to contact the Registry, but the Tribunal Member was not made aware of the request for an adjournment and that request was not considered. Those decisions are distinguishable from the present circumstances, there having been no request by Mr Simcoe for an adjournment.
In Trenholme t/as Trenholme Constructions v Paltram [2015] NSWCATAP 36 the Tribunal had proceeded with a hearing in the absence of the respondent without referring to his absence or providing reasons why it had proceeded in his absence as permitted by rule 35. In Chowdhury v Hossain [2017] NSWCATAP 109 service of the notice of hearing had not been effected in accordance with rule 13, and that failure, in circumstances where the respondent was not in fact aware of the hearing, meant the respondent had not been given a reasonable opportunity to be heard in the proceedings. Those decisions are distinguishable from the present circumstances, in which rules 13 and 35 were complied with.
In Kalice v Borck [2017] NSWCATAP 46 the respondent landlord had arrived at the Tribunal after the hearing had concluded and the Tribunal had ordered return of rental bond provided by the tenants. The Appeal Panel concluded there was no denial of procedural fairness, on the basis that the Tribunal had had evidence to be satisfied the landlord was aware of the hearing and had a reasonable opportunity to appear; in respect of the landlord running late none of the issues raised by the landlord in respect of his running late were issues he was not aware of before the hearing; and the failure to appear on time was due to the dilatory conduct of the landlord. In its reasons the Appeal Panel referred to Waters v Waghorn and Hood v Rutten, and to the requirements of s 36 of the NCAT Act, stating: 25. The obligation of the Tribunal under s 38(5) of the NCAT Act is that it must be satisfied a party has had a reasonable opportunity to appear and put their case before the Tribunal. To determine a matter in the absence of a party, it must further be satisfied that the party had notice of the hearing. The opportunity to be heard is not an immutable right, and the Tribunal must consider the just, quick, cheap and efficient resolution of the real issues in the proceedings under s 36 of the NCAT Act.
In Kalice v Borck the Appeal Panel commented: 26. The Member on 30 September 2016 had evidence to be satisfied the landlord was aware of the hearing, and had a reasonable opportunity to appear. At least one of the tenants was present, and ready to proceed. The rental bond is prima facie the property of the tenant, and there is clear prejudice to the tenant if proceedings are not determined with reasonable expedition, as the tenant is denied property which the landlord is only holding on trust.
In the present case, Mr Simcoe's approach to the appeal does not contest that he owes Mr Bate money: his concern is to reduce the amount to be paid. His position in correspondence with Fair Trading, in the Notice of Appeal and the supporting statement provided on 8 March 2019, and at the appeal hearing, is that he is prepared to pay Mr Bate $2,500. The basis on which he asserts that an amount less than $11,500 should be paid has changed. His position at the appeal hearing was that the $2,500 he is prepared to pay is calculated by $150 for each gate, $100 x 4 for hinges and latches and $500 to fix the damage to the concrete. In contrast, his position as recorded in the statement provided on 8 March 2019 is that that amount represents the time he estimates to install the steel work based on a daily rate, with no allowance for damage to the concrete. It was not clear from the comments in the Appeal hearing precisely how the quotation amount was arrived at by Mr Simcoe.
In the present proceedings, the Tribunal Member on 26 November 2018 had evidence to be satisfied that Mr Simcoe had been properly served with notice of the hearing, and had a reasonable opportunity to appear. On the appeal, Mr Simcoe has not provided any formal evidence as to any difficulties with his mail deliveries or some other reason why the notice of hearing may not have reached him. The applicant in proceedings HB 18/43363 had provided a detailed breakdown of the amounts claimed as compensation for the building work not completed or poorly completed, on which the Tribunal based its order. Mr Simcoe is not contesting that the work was incomplete, and his position on the appeal is to seek to negotiate a reduced payment. Mr Simcoe has not provided any formal evidence to substantiate his claim for a reduction.
A decision made in the absence of a party may, depending on the circumstances, constitute a failure to provide procedural fairness, as discussed in Hood v Rutten and Waters v Waghorn. Mr Simcoe did not make a set aside application, which is a relevant factor to consider in the circumstances: Hood v Rutten at [17]. He does not dispute that he owes Mr Bate money. Having regard to how Mr Simcoe has put his position for a reduction in the amount to be paid, it is unlikely to have made a difference to the outcome had Mr Simcoe pursued a set aside application. Mr Simcoe has not established that there was a failure to provide procedural fairness in respect of the decision of the Member to hear the matter in his absence. The Appeal Panel concludes that there was no error on a question of law.

Whether there was a substantial miscarriage of justice

Mr Simcoe seeks leave to appeal on grounds other than a question of law, contending that the decision was not fair and equitable. That is one of the three bases specified in cl 12(1) of Sch 4 to the NCAT Act on which leave can be granted.
In order to establish that leave to appeal on grounds other than questions of law should be granted, the Appeal Panel would need to be satisfied that the tenant may have suffered a substantial miscarriage of justice. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71] …[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result … it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
The Appeal Panel is not satisfied that Mr Simcoe has established that he may have suffered a substantial miscarriage of justice. He has not established that there was a denial of procedural fairness, which is a basis on which it might be said that a decision is "not fair and equitable": Collins v Urban at 77. Further, it cannot be said that the decision was not fair and equitable in circumstances where Mr Simcoe accepts that the work done for Mr Bate was incomplete and that he should repay some of the $61,000 paid to him by Mr Bate. Mr Simcoe would have to establish that there was a "significant possibility" or a "chance that was fairly open" of a different or more favourable outcome, and in view of his inconsistent approach to quantifying the value of the incomplete and poorly done work, the Appeal Panel is not satisfied that he has established that he may have suffered a substantial miscarriage of justice. Leave to appeal should be refused.

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Judgment (11 paragraphs)

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