Soulis v R & A Henry Auto Repairs & Ors

Supreme Court of NSW|2022-08-17|Before: Bellew J

INTRODUCTION

By a summons filed on 24 November 2021, Andrew Soulis (the plaintiff) commenced proceedings in this Court seeking leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Panel). The order sought in the summons is pleaded in the following terms: The plaintiff respectfully submits that leave to appeal should be granted as the decision of the NCAT Appeal Panel dated 29 October 2021 is attended with sufficient doubt to warrant it being reconsidered and substantial injustice would result if leave were refused. If leave to appeal is granted, the appeal should be allowed because there are numerous errors or mistakes of law apparent in the decision of the Appeal Panel that may have materially affected the decision.
The pleadings in the summons are somewhat discursive. The grounds of appeal (in the terms which they have been pleaded) are as follows: NCAT Appeal Panel made an error of law pursuant to s 36(1) of the NCAT Act when the Panel failed to adhere to the Guiding Principle. The Appeal Panel failed to properly review the legal errors that were outlined in the Plaintiffs Grounds of Appeal. The Appeal Panel did not properly consider that the Plaintiff was a self-represented party and as such may not have outlined his legal points to the level that the Tribunal was accustomed to from legally represented parties. Instead, The Appeal Panel criticised most of the Plaintiffs [sic] Grounds of Appeal by declaring them as being irrelevant or otherwise incompetent. This approach by the Panel is in total conflict with NCAT's Guiding Principle pursuant to s 36(1) of the NCAT Act 2013. The NCAT Appeal Panel made an error of law pursuant to s 38(5)(c) and s 38(6) of the NCAT Act by consistently preventing the Plaintiff from having a reasonable opportunity to be heard or have his submissions and evidence considered properly in the proceedings. The Plaintiff was again subjected to constant undue interference by Tribunal Members to the point where the Plaintiff was not only restricted and blocked from presenting his case but that the Appeal Panel made decisions and determinations even before the Plaintiff could outline his case. Furthermore, the Appeal Panel sabotaged the Plaintiffs [sic] Summons Application by forcing him to alter the dates and scope of documents to a much shorter period than was required. This resulted in the Plaintiff being severely deprived of obtaining crucial evidence. In addition, the Appeal Panel repeatedly attempted to force the Plaintiff to continue on with his case even though he was not in possession of all the evidence. The Appeal Panel ultimately made determinations in their decision of 29 October 2022, that was [sic] based on speculation and assumptions regarding the missing evidence from Summons to produce which had not even been tendered and/or submitted to the Appeal Panel hearing on the 3rd May 201 [sic]. NCAT made an error of law in its interpreting of s 33A of the Motor Dealers and Repairers Act 2013. In that the Appeal Panel stated that the Defendants were not in breach (of) section 12. The NCAT Appeal Panel made an error of law when it failed to address or apply section 18 of the Australian Competition and Consumer Act 2010 - Schedule 2 - in which the Defendants engaged in deliberately advertising their business and misleading the Plaintiff into believing they were licensed motor vehicle repairers at the time they were repairing the Plaintiffs [sic] motor vehicle when in fact they were not. The NCAT Appeal Panel made an error of law when it failed to consider or apply Part 3 - 2, Division 1, "Consumer Transactions" and also section 60 of the Australian Competition and Consumer Act 2010 "Consumer Guarantees" in which the Plaintiff was entitled to receive financial redress as a result of the Defendants breaching the contracts they had with the plaintiff for providing a service whilst unlicensed.

PRELIMINARY MATTERS

Before turning to the two notices of motion which are before the Court, it is necessary to address a number of preliminary matters.

The plaintiff's application for a remote hearing

On 4 August 2022 my associate received an email from the plaintiff which stated (inter alia) the following: I have been strongly advised by my treating doctor not to expose myself in public places for prolonged periods of time due to my vulnerable medical conditions as a result of the Covid 19 pandemic. As such, I am requesting that the scheduled hearing before Justice Bellew on 17 August 2022 be conducted via AVL only.
Attached to that email was a medical certificate dated 1 August 2022 under the hand of Dr K Koutsoullis which stated (inter alia) that medical conditions from which the plaintiff is said to suffer render him "very susceptible to coronavirus infection" as a consequence of which he had been "advised to stay away from crowds especially in enclosed spaces for prolonged periods". Notwithstanding the fact that a personal appearance before the Court would not, at least by itself, have necessitated the plaintiff being in a crowd within an enclosed space for a prolonged period, I acceded to his request that he appear remotely at the hearing of the notices of motion on 17 August 2022. The plaintiff was advised accordingly and was provided with the necessary login details.

The plaintiff's application for my recusal

On 16 August 2022, the day prior to the hearing, my Associate received an email from the plaintiff which included the following: This is an application seeking the recusal of Justice Bellew from the abovementioned proceedings on the grounds of serious actual and apprehended bias.
The application, which extended to some 23 pages, asserted that I had (inter alia): 1. engaged in corrupt conduct; 2. ordered staff of the Court Registry to "create a fictitious notice of motion"; 3. ignored breaches, by the defendants, of previous orders that I had made; 4. circumvented provisions of the Uniform Civil Procedure Rules 2005 (NSW) (the rules) in a way which was beneficial to the defendants; 5. unlawfully come into possession of confidential and privileged information; 6. belittled and ridiculed the plaintiff regarding Court procedures; 7. persistently obstructed the plaintiff from being able to properly prosecute his proceedings; and 8. provided legal advice to the defendants to facilitate the dismissal of the plaintiff's summons.
In addressing this application, I commence by noting that these proceedings have been for me on numerous occasions for directions. The transcripts of those directions hearings tend overwhelmingly against the proposition that I have conducted the proceedings in a way which was unfair to the plaintiff. The remaining allegations are entirely without substance and, in many respects, are not dissimilar to those relied upon by the plaintiff in a previous application for my recusal, which I refused. [5] For these reasons, the present application is similarly refused.

The plaintiff's application for an adjournment of the hearing

At 8:04am on 17 August 2022, being the day of the hearing, my Associate received an email from the plaintiff in the following terms: I have been admitted to the Emergency Department of Canterbury Hospital. Not feeling well. I don't think I will be able to make this morning [sic] hearing. Sorry for this. Andrew Soulis.
Attached to that email was a document described as a "screenshot" which contained a message in the following terms: Hi andrew, Canterbury Hospital ED has sent you helpful information for your visit. View here: https://gosh.re/OnGmNaP Opt out reply STOP
The section above that screenshot, which would normally disclose (inter alia) the time that the message was received, was obscured.
At 8:32am, upon being made aware of the plaintiff's correspondence, my Associate sent an email to the plaintiff in the following terms: His Honour has advised that as the matter is listed for hearing he will require a medical certificate confirming your inability to attend.
At the commencement of the hearing at 10:00am, no response had been received to that that email. Having confirmed that the plaintiff was not present (in person or virtually), I appraised the solicitor for the defendants of these developments and expressed the view that the correspondence received from the plaintiff should be treated as an application for an adjournment of the hearing. On that understanding, the solicitor for the defendants opposed such application. I determined that the matter should proceed and indicated that my reasons for coming to that view would be set out in my judgment. Those reasons now follow.
To begin with, these proceedings have a long history. The mechanical services which were carried out by the first defendant to the plaintiff's motor vehicle which form the basis of the plaintiff's complaint were carried out in 2020. The amount in issue is $9,017.00.
The plaintiff's initial application to the NSW Civil and Administrative Tribunal was filed on 7 September 2020. It was heard on 12 January 2021 and on 15 January 2021 an order was made in favour of the defendants by Tribunal Member Hennings.
The plaintiff then filed an application for an internal appeal which was heard by the Panel on 3 May 2021. The Panel reserved its decision and delivered judgment on 29 October 2021 in favour of the defendants. [6]
The proceedings in this Court were commenced on 24 November 2021. Since that time, the matter has been before the Registrar on several occasions, and before me on several other occasions, for directions. The present notices of motion which are before the Court were previously listed for hearing. That hearing was vacated in light of my decision to grant the plaintiff's application for referral for pro bono assistance [7] (such assistance having then been provided to him).
The history of the proceedings aside, the information provided by the plaintiff in respect of his admission to hospital was bereft of any detail, and any probative supporting documentation. The plaintiff did not respond to my request for the provision of a medical certificate which, in the normal course, would be expected to contain details of a diagnosis and a prognosis.
In all of those circumstances, I determined that the hearing should proceed. In reaching that determination, I was mindful of the dictates of justice set out in the Civil Procedure Act 2005 (NSW), and of the provisions of s 56(1) and (2) of that Act which are in the following terms: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
Having heard submissions made by the solicitor for the defendants, I reserved my decision on the determination of the notices of motion.

Events following the hearing

On 25 August 2022, my Associate received further email correspondence from the plaintiff which annexed various documents addressing the issue of his health. Those documents included a further certificate dated 23 August 2022 under the hand of Dr Koutsoullis, as well as a discharge summary from the Canterbury Hospital indicating that the plaintiff was discharged from hospital on 18 August 2022, i.e. the day following the hearing. Without going into detail, documents attached to that discharge summary indicated that at least one diagnostic investigation did not detect any abnormality.
I do not propose to set out the entirety of the contents of the plaintiff's email of 25 August, nor the contents of the numerous other emails which followed it. It is sufficient for present purposes to note that I interpreted such correspondence as incorporating: 1. a further application that I recuse myself, essentially on the same bases as those previously advanced; and 2. an application for the hearing to be re-opened, but then further adjourned to allow the plaintiff to make submissions.
The first of those applications should be dismissed for the same reasons which led me to dismiss the two previous applications for my recusal. The basis of the second application was that the plaintiff's current state of health prevented him from being in a position to deal with the notices of motion. It was explained to the plaintiff that as a matter of procedural fairness, it would be necessary to give the solicitor for the defendants the opportunity to be heard in respect of any application for an adjournment. It was also explained to the plaintiff that in that regard, it would be necessary, as a matter of procedural fairness, to provide the defendant's solicitor with the medical documentation which had been forwarded to me, given that such documentation was the evidentiary basis for the application. When informed of these matters, the plaintiff made it clear that he objected to any of the medical documentation being provided to the defendants' solicitor. In those circumstances, I re-listed the matter before me on 2 September 2022. The plaintiff was advised accordingly.
When the matter came before me on that date, the plaintiff did not appear, be it in person or virtually. The defendants' solicitor appeared, at which time I appraised her of the general tenor of the plaintiff's most recent correspondence, and explained to her that in view of the objections which had been raised by the plaintiff, such correspondence had not been forwarded to her. The defendants' solicitor submitted that I should proceed to determine the notices of motion without any further delay.
In all of the circumstances, that is the course that I propose to take. The defendant has been provided with ample opportunity to be heard.

THE NOTICES OF MOTION

There are two notices of motion before the Court for determination.
The first is a notice of motion filed by the plaintiff on 27 April 2022 seeking orders in the following terms: Pursuant to r 49.19 of the Uniform Civil Procedure Rules, the Court reviews [sic] the Orders made by Senior Deputy Registrar S Milligan on 11 April 2022. Pursuant to r 49.19 of the Uniform Civil Procedure Rules, the Court sets aside Orders 1, 3, 4 and 5 made by Senior Deputy Registrar S Milligan on 11 April 2022. Pursuant to r 49.15 of the Uniform Civil Procedure Rules, the Court makes an order directing the Registrar of the Court to order the Defendants to file and serve their evidence in reply pursuant to r 59.6 of the Uniform Civil Procedure Rules by 20 May 2022. Pursuant to r 49.15 the Court makes an order directing the Registrar of the Court to order that the Defendants must file and serve credible documentary evidence via an affidavit in support of any future allegation/s they make against the plaintiff's case in these proceedings. Such further or other orders as the Court deems fit.
The second is a notice of motion filed by the defendants on 31 May 2022, seeking orders in the following terms: An order pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules dismissing the Plaintiff's summons filed on 24 November 2021. In the alternative to prayer 1, an order pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules dismissing the Plaintiff's summons filed on 24 November 2021. In the alternative to prayers 1 and 2, an order pursuant to r 13.4(1)(a) of the Uniform Civil Procedure Rules dismissing the Plaintiff's Summons filed on 24 November 2021. In the alternative to prayers 1, 2 and 3 an order pursuant to r 50.16A(1) of the Uniform Civil Procedure Rules dismissing the Plaintiff's summons filed on 24 November 2021. Costs. Any other order this Court deems fit.
It is appropriate that the defendants' motion be determined in the first instance. In the event that the defendants succeed in having the plaintiff's proceedings dismissed, the plaintiff's motion will be rendered otiose.
The defendants' motion was supported by an affidavit of Mark Gary Henry of July 2022. [8] However, all relevant evidentiary material was contained in a Court Book which was prepared pursuant to previous directions made by me for the purposes of facilitating the hearing of the notices of motion. [9] Some of the material contained in that Court Book (such as the transcript of the proceedings before the panel) was provided by the plaintiff himself. But for the outline of submissions of the defendants (which were provided to the plaintiff on 16 August 2022), I am satisfied that the entirety of the material in the Court Book was in the plaintiff's possession by 20 July 2022, almost one month prior to the hearing. [10]

THE FACTUAL BACKGROUND

The factual background to the plaintiff's proceedings was summarised by the Panel in its reasons: [11] 1 The appellant, Mr Soulis, had work done on his vehicle by the first named respondent, R & A Henry Auto Repairs Pty Ltd, which apparently employs or has as its directors the second and third named respondents, Mr Brett Henry and Mr Mark Henry. 2 The appellant was dissatisfied with the workmanship of the repairs, and, as a result of this and certain issues arising from a review of dash camera footage captured whilst the repairs were undertaken, of other work previously performed by the respondents on his vehicle. 3 Whilst preparing his claim, the appellant discovered that the first-named respondent's motor vehicle repairer licence had lapsed throughout the period when it performed work on his vehicle; however that licence was reinstated by NSW Fair Trading, with retrospective effect. 4 The appellant commenced proceedings in the Consumer and Commercial Division, seeking a refund for work performed and alleged damages. He named all three respondents, for reasons which are not apparent where it seems that his agreement was with the first named respondent. For simplicity, though, we will not seek to differentiate between the respective rights and obligations of the three respondents in these reasons, as it has no material bearing on the outcome. 5 After hearing from the parties, the Tribunal reserved its decision, in part to review documentary and video evidence lodged by the appellant. 6 Whilst the matter was reserved, the appellant sought to withdraw his application. Again, the Tribunal took submissions from the parties about that issue. It then declined to allow the appellant to withdraw, and dismissed the substantive application. The Tribunal gave written reasons. 7 The appellant now challenges both the decision not to allow him to withdraw ("the withdrawal decision"), and the substantive decision.

THE HEARING BEFORE THE PANEL

Contained within Exhibit A is a transcript of the hearing which took place before the Panel, at which all parties were self-represented. In light of some of the grounds of appeal on which the plaintiff now seeks to rely, it is necessary for me to set out a number of extracts from that transcript.
At the commencement of the proceedings, the Senior Member said the following: [12] Um, for the benefit of you both, I would just like to explain the process today and what it is, uh, that we will need to do. So, um, Senior Member Lo Surdo and I have read the material, which each of you have lodged, uh, in respect of the appeal. What we are going to do today is to give you both an opportunity to speak to that material, uh, and to draw our attention, in particular, to anything you think, uh, is particularly relevant which we need to consider. Um, we'll hear firstly from the Appellant, then from the Respondent, and then from the Appellant what's called in reply. So, um, Mr Soulis, in the, um … in the circumstances where you're given an opportunity to reply, it's not an opportunity to simply renew all the initial submissions which you made. There's no need to do that. Uh, nor is it an opportunity to raise new issues. Once you've heard from Mr Henry, um, if there is anything which he raises which was new or that you didn't anticipate, you would need to deal with, you'll have an opportunity to speak to those matters in reply.
After confirming compliance with various procedural requirements, the Senior Member continued: [13] So, Mr Soulis, as I say, we'll give you an opportunity now to speak to your submissions. You have the opportunity to draw our attention to anything you think is particularly important or relevant, uh, or to clarify anything contained in your written submissions. We will try not to interrupt you, uh, but if we do interrupt you, it's solely so that we can clarify an issue, which we understand to be important or part of the real issues in dispute. If we do interrupt you, I'll ask you to stop speaking, particularly as we're on the telephone, um, and we'll ask you to direct yourself to the questions we ask. And then once that has occurred, we'll let you continue on with your submissions, so you don't need to be concerned that you're being cut off. We might just need you to, um, answer a specific question at a specific time. And Mr Henry, the same will apply to you once you're speaking as well. So, Mr Soulis, as I say we'll hear from you now. We'll try to interrupt you as little as is reasonably possible, uh, and you have an opportunity now to make your submissions.
In response to those opening statements, the plaintiff said: [14] Uh, I am not in a position to… uh, I'm not fully prepared to… uh, to present my case for a number of reasons, if the, the Tribunal wishes to allow me to elaborate on that particular issue.
The Senior Member then confirmed that the plaintiff was making an application for the hearing to be adjourned. [15] On a fair reading of the transcript, the Panel then allowed the plaintiff the fullest possible opportunity to articulate the bases of his application. [16]
Having given the plaintiff that opportunity, the Senior Member said: [17] But, but Mr Soulis, I, I, I understand the position now, and thank you for taking us through it, uh, step by step. That was very helpful. So, um, the, the Tribunal, uh has no authority, subject to any submissions you might like to make, sir, to direct Department of Fair Trading to do what you've requested in that email.
The plaintiff's submissions then continued, in the course of which the following exchange took place: [18] PLAINTIFF: Suthers [sic] … Member Suthers [sic], may I interrupt you, please? SENIOR MEMBER: Yes. PLAINTIFF: You can…… You… Yes, you can twist this as many times as you wish… SENIOR MEMBER: No, no, no, Mr Soulis … … PLAINTIFF: [Over talking]. You really need to allow me to speak, sir. SENIOR MEMBER: And I will, Mr Soulis, and as I indicated to you at the outset, when I interrupt you, I will ask you to focus on my questions and then you will be given more of an opportunity. PLAINTIFF: What you're … what you're about to say, sir, is, is that whether, whether you… the fact that you didn't receive what you wanted, the fact that you accept, uh, the, the, uh, Deputy President's instructions, that means that's what you gotta comply… Well, you can't complain about it. That's not due process, sir.
The exchange then continued: [19] SENIOR MEMBER: If you don't… Sir, if you don't stop speaking when I speak… PLAINTIFF: Yes? SENIOR MEMBER: I… we will be forced to put you on mute while I speak and then take you off mute … PLAINTIFF: Right. Let me get this right. So now you're trying to threaten me that you'll cut me off? Is that what you're saying… SENIOR MEMBER: No, no. PLAINTIFF: Sir? SENIOR MEMBER: No, no. It's not, sir. What I'm saying is… PLAINTIFF: But what… SENIOR MEMBER: If you refuse to… PLAINTIFF: You're saying… What you're saying, sir, is, is, is, I would like you to comply with this instruction, sir. If I can refer you… If I can refer you, please, to page 58 of annexure B. Please, sir. SENIOR MEMBER: Yes, Mr Soulis? PLAINTIFF: Right. That is the NCAT member code of conduct. That was made by the Honourable Justice Lea Armstrong, President, 9 July 2020. The, the, current instructions. SENIOR MEMBER: Yes. Mr… PLAINTIFF: And it says… SENIOR MEMBER: Soulis … No, sir, stop for me for a moment. I've given you an opportunity to raise that issue. I'm aware… PLAINTIFF: Let… SENIOR MEMBER: Of the Member … PLAINTIFF: Let… SENIOR MEMBER: Code of conduct. PLAINTIFF: Let me finish. You see? You're, you're, you're already… You're … gotta let me finish and then you can respond. SENIOR MEMBER: No, no, sir. Just stop for a moment, Mr Soulis. You have a fundamental misapprehension of how this process works. PLAINTIFF: I don't think… SENIOR MEMBER: It is not a… PLAINTIFF: I have. SENIOR MEMBER: It is not a situation where you simply talk to us about any issue you would like to raise and then we respond. That is not the process. We… PLAINTIFF: Sir … SENIOR MEMBER: I need you to focus on the … PLAINTIFF: You asked… SENIOR MEMBER: Real issues in dispute and you provide submissions. PLAINTIFF: You asked me a question, what is it specifically, blah, blah? I'm about to. Then you interrupt, and then I ask you let me finish and then you ask me another question, and then I go to respond to that and again you cut me off, and then I'm trying to… See, the respondent's loving all this. He's gonna win today not because of the evidence but because I'm standing up for my rights and the Tribunal is allowing it or doesn't like it and they're gonna award the case to him again and he's… SENIOR MEMBER: Mr Soulis. PLAINTIFF: Loving it, which… SENIOR MEMBER: Mr Soulis. PLAINTIFF: Is exactly what… Let me finish. SENIOR MEMBER: The best way… PLAINTIFF: Let me finish. And he's loving this because he's gonna win the case again and this Tribunal is taking over what our Tribunal member did. Now, I'm sick and tired of being thrown in the gutter and told to shut up and muzzled and threatened that if you don't shut up, we'll gonna cut you off. You need to comply with your general responsibilities as a member of the Tribunal, sir. The Tribunal Members have the following general responsibilities both in their activities, etc, respect for the law, all times performing the duty to comply with the law in relation. Fairness. Apply the law equally and acting in an impartial manner in his performance. uh… SENIOR MEMBER: Mr Soulis… PLAINTIFF: Where is it? No, hang on. See? Again… SENIOR MEMBER: Mr Soulis. PLAINTIFF: You interrupted. SENIOR MEMBER: I don't need you, sir, to read to me the Member Code of Conduct. What I'd like you… PLAINTIFF: But… SENIOR MEMBER: To do now, Mr Soulis … PLAINTIFF: I'm forced to. Sir, I'm, I'm forced to. I'm forced to because I'm not being taken seriously and you're claiming that I don't know anything about this, and I do. SENIOR MEMBER: Mr Soulis, I haven't yet claimed anything nor is it my intention to. My intention is to give you an opportunity to make submissions on the real issues in dispute in this appeal, and at the moment, we're still trying to deal with your adjournment application, sir.
Further exchanges between the plaintiff and the Senior Member continued over the next seven pages of transcript. They included the following: [20] SENIOR MEMBER: So, Mr Soulis, what I'm… what I'm going to do, just hold on for me for… PLAINTIFF: You've gotta let me… You've gotta let me finish, sir. You've gotta let me finish because if you… SENIOR MEMBER: Yeah… PLAINITFF: Keep… SENIOR MEMBER: Mr… PLAINTIFF: Interrupting me, keeping asking… SENIOR MEMBER: Mr Soulis… PLAINTIFF: New questions, we'll just… We'll just wasting time and then you say to me that I'm wasting time. SENIOR MEMBER: Mr Soulis, it is now 11:02. PLAINTIFF: Yes. SENIOR MEMBER: We're going to… We're going to hear from you until 11:07 uninterrupted, and then I'm going to interrupt you and I will ask you to stop speaking. All right? PLAINTIFF: So you're, you're giving me the direction that I'm restricted… SENIOR MEMBER: You just… PLAINTIFF: To say… SENIOR MEMBER: You just ask… PLAINTIFF: My piece? SENIOR MEMBER: For five minutes, so I'm offering it to you. PLAINTIFF. No, I… Okay. So, you're giving me a direction right now that I'm only allowed to talk for five minutes to present my case as to why I'm not ready to proceed and, and if I don't… And, and … SENIOR MEMBER: Sir… PLAINTIFF: If after five minutes, uh, if I'm not finished… SENIOR MEMBER: Sir, sir, don't… Sir, don't quibble with me. You asked for five minutes. I offered it to you. There's no question of a direction. PLAINTIFF: Allright. Well, sir, let's, let's, let's be honest here. If I'm ten minutes, what are you gonna do, for example? if I… SENIOR MEMBER: Well… PLAINTIFF: If I have [Overtalking]? SENIOR MEMBER: Well, Mr Soulis… Sir, Sir, how long do you think you will need uninterrupted to address this question of an adjournment? PLAINTIFF: No, the directions of a Tribunal, as I understand it, says that this hearing has been set down for half a day. SENIOR MEMBER: That's right, sir. So, what I'm asking you, though, is just to address my question. PLAINTIFF: But why, why, [Overtalking]. SENIOR MEMBER: How long do you… PLAINTIFF: [Overtalking] SENIOR MEMBER: Think you will need? PLAINTIFF: Five minutes… Why then are you consistently interrupting me with question after question, new question after new question, and then you're saying, I'm only gonna give you five minutes, when you've got half a day scheduled? I don't understand. SENIOR MEMBER: Sir, five minutes was your figure. How long… PLAINTIFF: Oh. SENIOR MEMBER: Do you think you will need? PLAINTIFF: Approximately ten to 15 minutes. SENIOR MEMBER: All rights. Sir, we'll give you 15 minutes. It's 11:04. I will interrupt you in 15 minutes and then I will ask you to stop speaking. What else would you like to say about why we should adjourn? PLAINTIFF: I did say… I did say… SENIOR MEMBER: No, sir. No. Please, commence. You're now eating into the 15, minutes, which you have available. PLAINTIFF: No. Hang on. Hang on. You don't really [unclear] this, okay? I did say approximately. Not exact. SENIOR MEMBER: No. But I'm… PLAINTIFF: So please… SENIOR MEMBER: Prepared… I'm prepared to allow you 15 minutes and then I'll review whether I think you should be finished at that point, but at the moment, you're eating into that time, Mr Soulis I suggest that you start making your submissions.
Over the next four pages of transcript, [21] the plaintiff addressed the Panel without interruption, following which the Senior Member sought clarification of a number of matters. [22]
The representative of the first defendant was then permitted to address the Panel in relation to the plaintiff's application for an adjournment, which was opposed. [23]
After standing the matter down for a short period, the Panel reconvened at which time the Senior Member said: [24] Yes. Thank you. All right. Gentlemen, we've been able to make a decision in respect of the application from adjournment. The application for an adjournment is refused. What we're then going to do is allow, uh, as I said at the outset, each of the parties to make, uh, ongoing submissions about the substantive aspects of the appeal. We'll commence with Mr Soulis.
The following exchange then took place between the Senior Member and the plaintiff: [25] SENIOR MEMBER: Now, Mr Soulis, we're going to allow you half an hour at this stage and then see whether that appears to be sufficient, given, uh, that we heard from you in respect to some of the substantive issues earlier. We'll then hear from Mr, um, Henry and Mr Soulis in reply as required. As I said, Mr Soulis, we will try to not interrupt you any more than is necessary to assist us, um, but, uh, it's 11:30 now, and now, uh, we'll give you until 12:10 at least and then see how you've gone in terms of making your submissions. Uh, if we do interrupt you, we'll just ask that you focus on answering the question we've asked and then let you go back to your submissions. And you can commence now. PLAINTIFF: As I've stated from the outset of this, uh, appeal, I am in no position, unable to proceed with this appeal as a result of significant evidence that's missing, and I've been denied by the tribunal members in this appeal and the previous appeals. So it's, its, uh, uh, uh, uh, uh, … The decision can be made, uh, upon that… On that request, so if you feel that I do have the evidence and I say I don't, then you need to make the decision that… In relation to today's, today's appeal. SENIOR MEMBER: All right. So, so that I understand you, you don't wish to make any further submissions on the substantive issues? PLAINTIFF: I just told you that there's no point trying to force a party to testify and present his case when he is seriously deficient in his… In his documentation and evidence, so… SENIOR MEMBER: All right. PLAINTIFF: You can't force me to because then you're gonna say, well, we provided him with an opportunity. He accepted. Uh, even though we didn't have the documents, he accepted, and, uh, we, we award the case to the Respondent. No. SENIOR MEMBER: mm. PLAINTIFF: I can't start this case because I been seriously deficient as a result of the Tribunal's constant blockage of my evidence and my ability to, to obtain evidence, so you guys can make whatever decision you feel like.
The representative of the defendants indicated to the Panel that he wished the matter to proceed, and submitted that the Panel should uphold the decision at first instance. [26] When given the opportunity to address the Panel in reply, the plaintiff said the following: [27] Yeah, I don't appreciate the Tribunal member assisting and aiding and verbalising and helping the Respondent to, to reach a, uh … The words that… He needs to stand up on his own two feet. I don't like the fact that the Tribunal is sitting there and acting as, as the Respondent's cost-free legal representatives. That's the first issue. Number two. The Respondent has failed to identify not one legal point in all my, uh, Notice of Appeal in, in, in any… In the Notice of Appeal, in the Grounds of Appeal, he hasn't identified one single item and he just said to you a moment ago, he didn't know that… What to do. Well, if you don't know, then that's pretty easy for someone… For a…, For, For a… For, a, a, a, a,… Any court to say, well, if you didn't know, ignorance is no excuse in the law. You should go and seek independent legal like Andrew Soulis did for the past seven months and paid up to $3,000 borrowed money 'cause I'm a disabled pensioner to seek this advice to assist him in making life better for the Tribunal, which I have. I've spent enormous amount of time, enormous amount of money. This guy's just submitted, if you have a look at Notice … Uh, reply to appeal. Three pages. Three pages. Telling us how great of a mechanic he is and how long he's been in business, etc., etc., etc. Not one issue refuting, challenging… Or challenging any points of law contained in my Notice of, of Appeal. Grounds of Appeal. So, I don't believe he's got any leg to stand on. I have overwhelming evidence, at least the evidence that I have. I would've had a lot more had I not been blocked by the Tribunal. For the Tribunal to make an easy decision to, uh … To, to, uh … In my Appellant's final submissions to be to the Appeal Panel, page 1, uh … Sorry, sorry. Uh, page … Where is it? Ah Orders the NCAT Appeal Panel should make, uh, is contained on page 2 of the orders. Very simple. He hasn't… he hasn't, uh, submitted, challenged, refuted any of the… Any of, of, of, of today's appeal points of law. Uh, he's really did… He did … He didn't really say anything in relation to what I raised about the hearing during the, uh, uh, 11th January of this year. That decision is deficient. I was denied procedural fairness in relation to the withdrawal of the application. The Tribunal member on that day was more concerned about the, the, the Respondent's, uh … He didn't want him to get sued in the local court. That's not his… That, that, that is not the Tribunal's, um, uh, determination. It's not… It's not his job to ensure that… to project the financial and legal interests of the Respondent. I complied with the, the, the, the, the, the guidelines that's, stipulated on the, uh… On the web… On NCAT's website. I complied with all that on page 1 and page 2, as I have on… I, I don't want to refer you, again, to the same documents. Uh, the Tribunal member categorically failed to adhere to a number of sections of the NCAT Act, a number of sections on, on the, uh … A number of sections of the, um, uh, Code of Conduct, and the Respondent today hasn't addressed any of those issues whatsoever. He's been given ample opportunity to, and he hasn't.
The Senior Member responded [28] by indicating that the Panel would reserve its decision. The decision was delivered on 29 October 2021. I have set out the relevant parts of the Panel's reasons below when addressing the various grounds of appeal.

THE PRINCIPLES APPLICABLE TO THE DETERMINATION OF DEFENDANTS' MOTION

The primary relief sought by the defendants is that the plaintiff's proceedings be dismissed pursuant to r 13.4(1)(b) of the rules. Rule 13.4 is in the following terms: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
The authorities emphasise that in order to dismiss proceedings on the basis relied upon by the defendants, the absence of any cause of action must be very clear. In Cox v Journeaux (No. 2) [29] Dixon J (as his Honour then was) emphasised that the power to dismiss proceedings is to be exercised only when the action which has been brought is clearly without foundation. His Honour expressed similar views in Dey v Victorian Railways Commissioners. [30]

Ground 1 - Error of law pursuant to s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) arising from the Tribunal's failure "to adhere to the Guiding Principle" and to "properly review the legal errors that were outlined in the plaintiff's Grounds of Appeal."

The reasons of the Panel

In its reasons, the Panel said the following: [31] 23 The appellant at least partially traversed his grounds of appeal in making submissions on his application for an adjournment. When his application for an adjournment was refused, however, the appellant declined the opportunity to make further submissions, other than in reply to the limited submissions of the respondents. We considered the grounds on the basis of the appellant's written submissions and such oral submissions as were made in support of them. Whilst we accept that the respondent made little response to the grounds of appeal, as submitted by the appellant, the appellant bears the onus of satisfying us that one or more of his grounds identify a question of law relevant to the decision. The existence of a question of law is "...not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 82 ALR 175. 24 Despite the appropriate efforts of the appellant, as an unrepresented litigant, to attempt to identify questions of law in his grounds of appeal, we are not satisfied that he has done so in respect of questions which actually arise from the decision of the Tribunal. Certainly, the appellant alleges errors in the application of the law by the Member. However, that is not the same as a question of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. 25 Further, whilst we should make appropriate efforts to review the grounds raised by a self-represented litigant to determine whether a question of law has in fact been raised, we must also ensure that process is fair to the respondents. Here, where the appellant refused to participate in a discussion of his grounds after his adjournment application was refused, we were prevented by the appellant from properly undertaking this process.
In the paragraphs of the reasons which followed, the Panel considered the grounds relied upon by the plaintiff, and concluded [32] that no question(s) of law were raised.

Submissions of the plaintiff

The plaintiff submitted that the panel: 1. failed to properly review the legal errors he had articulated in his grounds of appeal; 2. failed to properly consider that he was a self-represented party, and as such "may not have outlined his legal points to the level that the Tribunal was accustomed to from legally represented parties"; 3. had "criticised most of [his] Grounds of Appeal by declaring them as being irrelevant and or otherwise incompetent"; and 4. had acted in a way which was conflict with the provisions of s 36(1) of the NCAT Act.

Consideration

Section 36 of the NCAT Act is in the following terms: Guiding principle to be applied to practice and procedure (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. (2) The Tribunal must seek to give effect to the guiding principle when it-- (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal-- (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (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 subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
This ground of appeal does not raise any question of law. The reasons of the Panel make it abundantly clear that the plaintiff's case was considered in full, and that the Panel proceeded in accordance with s 36 of the NCAT Act.

Ground 2 - The Tribunal erred in law pursuant to s 38(5)(c) and 38(6) of the Act by consistently preventing the plaintiff from having a reasonable opportunity to be heard or have his submissions and evidence considered properly in the proceedings

The proceedings before the Panel

I have previously set out parts of the transcript of the proceedings before the Panel which contain several exchanges which took place between the plaintiff and the Senior Member of the Panel during the hearing. Those exchanges are relevant to the determination of this ground.

Submissions of the plaintiff

The plaintiff submitted that: 1. the Panel had erred by "consistently preventing [him] from having a reasonable opportunity to be heard, or have his submissions and evidence considered properly in the proceedings"; 2. he had been subjected to "constant undue interference" by the Panel members, to the point where he was prevented from presenting his case, and in circumstances where the Panel had "made decisions and determinations even before [he] could outline his case"; 3. the Panel had "sabotaged" the proceedings by "forcing him to alter the dates and scope of documents to a much shorter period than was required", which resulted in his being "severely deprived of obtaining crucial evidence"; 4. the Panel had "repeatedly attempted to force [him] to continue on with his case even though he was not in possession of all the evidence"; and 5. the Panel had made its determination "based on speculation and assumptions regarding the missing evidence from the summons to produce which had not even been tendered and/or submitted to the Appeal Panel hearing on 3 May. 2001".

Consideration

Sections 38(5) and (6) of the NCAT Act are in the following terms: Procedure of Tribunal generally …… (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. (6) The Tribunal-- (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing--may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
This ground of appeal does not raise any question of law. It will be evident from the extracts from the transcript of the proceedings before the Panel set out above that the plaintiff's various complaints about the Panel's conduct of the proceedings are entirely untenable. On any view, the plaintiff was given a full opportunity to be heard and present his case.

Ground 3 - The Tribunal made an error of law in its interpreting of s 33A of the Motor Dealers and Repairers Act 2013 (NSW).

The reasons of the Panel

Under the heading "The balance of the grounds of appeal" the Panel said the following: [33] 39 Many of the remaining grounds are based on a fundamental misunderstanding by the appellant as to the difference between the consequence of breach of a statutory requirement where a penalty is incurred, and its effect on civil proceedings between parties. 40 As the Member below (albeit, with respect, somewhat inelegantly) attempted to explain to the appellant, there are different consequences which potentially flow from the respondents' failure to ensure that the first respondent's motor vehicle repair licence is maintained, depending on the forum where the issue is considered. 41 For example, even if the appellant's fundamental contention is correct and the first respondent was unlicensed during the period when repairs were conducted on his vehicle that does not automatically void the contract between the appellant and first named respondent. The effect of such a breach would be that the respondents may have been subjected to a penalty on prosecution. In the example given by the Member, an unlicensed driver may be guilty of an offence, but not found to be negligent or to have caused damage in an accident they are involved in. What was required here was a causal link between the actions of the respondents and the damage alleged by the appellant. 42 Nor is the position in respect of the first respondent's licence probative evidence that the work was carried out without due care and skill, or in breach of any statutory warranties under the Fair Trading Act read with the Australian Consumer Law (NSW). 43 Other evidence was required as to the nature and quality of the work undertaken on the appellant's motor vehicle, if the appellant was to satisfy the Tribunal below as to the basis for his claims for a refund and damages. The Tribunal was not satisfied that the appellant met the evidential onus he carried in that regard, for reasons it gave. 44 Finally, whilst the appellant was concerned to demonstrate that the respondents carrying out motor vehicle repairs whilst unlicensed showed that they engaged in misleading and deceptive conduct, there is actually no evidence before us to demonstrate that the respondents held themselves out as being so licenced in any event. 45 That is why the questions raised by the appellant, which might in another context have been properly reframed into questions of law, being: ● What is the proper meaning of the phrase: "A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless the person is the holder of a motor vehicle repairer's licence"; ● What is the proper meaning of Section 33A where it appears that the Member's reasoning and decision was in direct conflict with Section 12 of the Motor Dealers and Repairers Act: ● "A licence restored at any time is taken to have been restored from the day on which the licence expired."; and ● What is the proper meaning of the phrase: "A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: [followed by the relevant subsection] [or] A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." do not actually arise in these proceedings. 46 It has long been held that it is not the role of courts or tribunal's to pronounce on matters in the abstract. In Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [35], Campbell JA (Young JA and Meagher JA agreeing) noted that: "[I]t could only be in rare circumstances, if ever, that a court was justified in reaching a decision on a legal question that had no practical consequences for either of the parties": Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69. 47 For those reasons, there is no question of law raised.

Submissions of the plaintiff

The plaintiff submitted that: 1. s 33A of the Motor Dealers and Repairers Act 2013 (NSW) (the MDRA) was "an administrative mechanism" which facilitated whether or not a business or tradesperson was licensed; 2. the restoration of a licence "should not absolve an unlicensed person from legal jeopardy and/or from breaches under s 12 of the Act at the time they were trading and/or repairing public passenger vehicles"; 3. at the time that the relevant repairs were being carried out to his vehicle the defendants did not hold a licence; and 4. the Panel failed to take these matters into consideration.

Consideration

Section 12 of the MDRA is in the following terms: 12 Unlicensed motor vehicle repairers A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless-- (a) the person is the holder of a motor vehicle repairer's licence, and (b) the business is carried on or proposed to be carried on at a place for which the licence is granted, and (c) the business is carried on or proposed to be carried on in accordance with the licence. Maximum penalty--1,000 penalty units or, in the case of a second or subsequent offence, 1,000 penalty units or imprisonment for 12 months, or both. Note : An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation--see section 159.
Section 33A of the MDRA is in the following terms: Time period for restoration of licences (1) An application for the restoration of a licence must be made-- (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that-- (a) in a case where the applicant failed to apply for renewal before the licence expired--the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been cancelled must not be restored. (4) An application for the restoration of a licence must-- (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence.
This ground of appeal does not raise any question of law. There was no error on the part of the Tribunal in its interpretation of s 33A of the MDRA. The Panel correctly concluded that even if the defendants were not licensed at the time that the repairs were carried out, that did not lead to a conclusion that the plaintiff was entitled to relief. In doing so, the Panel correctly drew a distinction between the consequences of a breach of a punitive provision per se (such as s 12 of the MDRA) and the consequences of such a breach in civil proceedings between relevant parties.
Further, given the Panel's comprehensive reasons, the proposition that the Panel failed to properly take into account the matters raised in respect of the MDRA during their deliberations is without substance.

Ground 4 - The Tribunal erred in law when it failed to address or apply s 18 of the Australian Competition and Consumer Act 2010 (Schedule 2)

Ground 5 - The Tribunal erred in law when it failed to consider or apply Part 3 - 2, Division 1, "consumer transactions" and also s 60 of the Australian Competition and Consumer Act 2010 "consumer guarantees" in which the plaintiff was entitled to receive financial redress as a result of the defendants breaching the contracts they had with the plaintiff for providing a service whilst unlicensed

The reasons of the Panel

In its reasons, [34] the Panel noted that a finding had been reached at first instance that the evidence did not establish that the defendants had breached the Australian Consumer Law. The Panel concluded that on the available evidence, the defendants had carried out the required repairs with due care and skill, and in a proper manner. The Panel then said: [35] 42 Nor is the position in respect of the first respondent's licence probative evidence that the work was carried out without due care and skill, or in breach of any statutory warranties under the Fair Trading Act read with the Australian Consumer Law (NSW). 43 Other evidence was required as to the nature and quality of the work undertaken on the appellant's motor vehicle, if the appellant was to satisfy the Tribunal below as to the basis for his claims for a refund and damages. The Tribunal was not satisfied that the appellant met the evidential onus he carried in that regard, for reasons it gave.

Submissions of the plaintiff

The plaintiff submitted that the defendants had deliberately mislead him into believing that they were licensed motor vehicle repairers at the time they were repairing his motor vehicle, when in fact this was not so.

Consideration

The provisions of s 18 of the Australian Competition and Consumer Act 2010 (Cth) relate to the issue of meetings of the Australian Competition and Consumer Commission. It is difficult to ascertain how it is asserted (in ground 4) that the Tribunal erred in law when it failed to address that provision. Ground 4 does not raise any question of law.
Further, the finding of the Panel was that there was insufficient evidence to establish that plaintiff was entitled to any relief was a factual finding. Ground 5 does not raise any question of law.

CONCLUSION

For the reasons set out, no questions of law have been identified by the plaintiff in any of the proposed grounds of appeal. It follows that the proceedings disclose no reasonable cause of action and should be dismissed. In these circumstances, the plaintiff's notice of motion does not need to be considered.

ORDERS

I make following orders: 1. The proceedings are dismissed. 2. The notice of motion filed by the plaintiff on 27 April 2022 is dismissed. 3. The question of costs is reserved. 4. Absent agreement, each party is to file, within 7 days, written submissions in relation to the issue of costs, such submissions not to exceed two pages in length. 5. I direct the Registrar to forward a copy of this judgment to the plaintiff by email by 5.00 pm on 16 September 2022.

Endnotes

Osland v Secretary to the Department of Justice (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ; Gummow and Bell JJ.
TNT Skypack International (Aus) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J.
[2011] VSC 37 at [3].
Schwartz Family Co Pty Limited v Capitol Carpets Pty Limited [2017] NSWCA 223 at [13] per the Court (Meagher, Payne and White JJA).
Soulis v R & A Henry Auto Repairs & Ors (No. 1) [2022] NSWSC 966.
Soulis v R & A Henry Auto Repairs Pty Limited [2021] NSWCATAP.
Soulis v R & A Henry Auto Repairs & Ors (No. 2) [2022] NSWSC 987.
Exhibit A.
Exhibit A.
Transcript of proceedings of 17 August 2022 at T4.1 - T6.45.
Soulis v R & A Henry Auto Repairs Pty Limited [2021] NSWCATAP 338 at [1] - [7].
T2.4 - T2.7.
T3.5 - T3.8.
T3.8 - T3.9.
T3.9 - T.4.2.
T4.2 - T8.1.
T8.2 - T.8.4.
T9.3 - T9.8.
T10.4 - T12.7.
T19.4 - T21.2
T21 - T25.
T25.8 - T29.8.
T29.10 - T30.7.
T31.4 - T31.5.
T31.5 - T32.2.
T32.3 - T33.5.
T33.5 - T34.5.
T34.7.
1935 52 CLR 713; [1935] HCA 48 at 720.
(1949) 78 CLR 62; [1949] HCA 1 at 91; see also General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129 - 130 per Barwick CJ.
At [23] - [25].
At [47].
At [39] - [47].
At [10].
At [42] - [43]. 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: 16 September 2022

Australian Competition and Consumer Act 2010(Cth)

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