Sydney RV Group Pty Ltd v Mark Anthony Vallender

NCAT Appeal Panel|2021-02-16

Solicitors: Adams & Partners Lawyers (Appellant) STC Legal (Respondent) File Number(s): 2020/00371117 (AP 20/44821) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial division Citation: n/a Date of Decision: 2 October 2020 Before: L Wilson, Senior Member File Number(s): MV 20/22464

Ground One - That the appellant was not provided notice of the final hearing by the Tribunal.

In its Notice of Appeal, the appellant asserted that the Tribunal had not sent it a notice of the hearing conducted on 2 October 2020.
Rule 13(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that a notice or document may be served upon a body by posting a copy, addressed to the body.
In respect of corporations, r 13(2)(h) of the Civil and Administrative Tribunal Rules provides specifically that service may be effected by service "in any manner in which service of such a notice or document may, by law, be served on the corporation". Under s 109X(1)(a) of the Corporations Act 2001 (Cth), for the purposes of any law, a document may be served on a company by, inter alia, posting it to the company's registered office. The appellant was a company as it was incorporated under the Corporations Act.
For the service of a process of a Tribunal within Australia effective methods of service are prescribed by s 9 of the Service and Execution of Process Act 1992 (Cth). Section 9(1) is in substantially similar terms to s 109X(1)(a) of the Corporations Act.
The Act gives the President the power to make procedural directions relating to the practice and procedure of the Tribunal. Practice Direction One, issued on 8 January 2018, provides inter alia for how corporations may be served with a Notice of Hearing in proceedings in the Tribunal, including by posting it to the registered office of the corporation.
Under the heading "How may notice of a hearing be given?" the Direction indicates at [27] that: "If proceedings are listed for hearing when any of the parties is not present, the Tribunal or a registrar may either: (a) give notice of the date, time and location of the hearing to all parties; or (b) direct a party to give that notice to all other parties."
The Direction goes on to confirm at [29] that: "Notice of a hearing may be given by any means which a registrar reasonably believes will be likely to bring the information concerning the hearing to the attention of the party to whom notice is to be given including all the means by which documents may be served."
Rule 13 of the Civil and Administrative Tribunal Rules provides, relevantly: 13 Service, giving and lodgment of notices or documents (1) Application of rule This rule applies for the purposes of each of the following - (a) the Act and the statutory rules under the Act, … … (4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is - (a) in the case of a copy of a notice or document that is posted - at the end of the seventh working day after the date on which the notice or document was posted to the person, or …
In directions preparing the appeal for hearing, the Registrar of the Consumer and Commercial Division was requested to forward to the parties a copy of each Notice of Hearing and any directions issued in the proceedings below.
As it became clear, the Tribunal file indicated that the appellant had been sent several notices and copies of the directions made in the proceedings, including notice of the final hearing on 2 October 2020, and directions that it file evidence and submissions in advance of that hearing. In fact, the file contains copies of the notices that were sent to the appellant at both its registered office and principal place of business, as notified by the appellant to the Australian Securities and Investment Commission.
At the hearing of the appeal, the appellant acknowledged that the file indicated that this had occurred. Notwithstanding that, the appellant declined to abandon Ground One, and relied on the evidence of some of its officers that they had not had the notices or directions brought to their attention, where they would otherwise have expected that to occur.
The appellant relies upon a line of authority developed in the Courts in respect of creditors statutory demands and exemplified by a decision of the NSW Supreme Court in Pearlburst Pty Ltd v Summers Resort Group Pty Ltd; Landmark Leisure Group Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126. That line of authority has decided that, where service is required pursuant to the Corporations Act, there should be certain minimum standards as to the evidence required by a Court in respect of service, in that proof by a creditor that a Statutory Demand has been served should include proof of several elements: 1. That the notice was properly addressed; 2. That the envelope was pre-paid; 3. That the envelope contained the relevant document to be served; 4. That it was posted as a letter; and 5. That it was sent to the registered office of the company.
There are two reasons that line of authority does not assist the appellant.
Firstly, the rules of evidence do not apply in the Tribunal: the Act, s 38(2).
Secondly, that line of authority concerns proof by one party to litigation as to the steps it has taken to serve another. Here, the Tribunal assumed responsibility for service and, unlike the position where the parties have competing interests, the Tribunal Registry may be properly inferred to have taken the necessary steps to post notices where copies are retained on its file. The retention of those notices is sufficient evidence that they were sent, in accordance with the usual practice of the Tribunal.
In addition, the evidence, led by the appellant through its various officers, that the notices were not received by them or located by them in the records of the company, does not necessarily or inevitably lead to the conclusion that the notices were not received by the Company.
There was no evidence as to who was responsible for opening the company's incoming mail or of any audit of the mail received by the appellant that was conducted in a meaningful way. Another director of the Company, Mr Luke Gustave Trouchet, gave no statement of evidence of his knowledge of the matter, which is a relevant factor to consider: Jones v Dunkel (1959) 101 CLR 298 at 320.
Given the sheer volume of documents sent by the Tribunal to the appellant at its registered office and principal place of business, which we list below at [78], it is also glaringly improbable that none of them was received, as alleged.
On the contrary, we are satisfied that the evidence preponderates to a finding that the appellant's internal processes have failed, leading to the notices and directions not being appropriately identified and actioned by the appellant.
As Mr Roe says in his statement of 2 November 2020, at [5]: "As a direct result [of the effects of COVID-19 on the appellant] there have been delays in processing and sorting paperwork and other matters including managing disputes."
The appellant has not discharged the burden of satisfying us that the Notice of Hearing was not received, in accordance with r 13(4) of the Civil and Administrative Tribunal Rules. It was, therefore, taken to have been received.
The Tribunal did not err, as alleged, by proceeding without proper notice to the appellant.

The relevant legislation and legal requirement to provide procedural fairness

Sections 38(2) and (5) of the Act, provide as follows: 38 Procedure of Tribunal generally … (2) 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. … (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.
What must be done to accord procedural fairness and ensure natural justice will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504: "[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [to correct or contradict any relevant statement prejudicial to their view] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin. As Tucker L.J. said in Russell v. Duke of Norfolk, in a passage approved by the Privy Council in University of Ceylon v. Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth." (Citations omitted.)
In AEA Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal and Ors [2014] NSWSC 911, Price J confirmed, in respect of the predecessor to the Consumer and Commercial Division, which was at that time the Consumer, Trader and Tenancy Tribunal, at [58] that: "The Tribunal has discretion to grant an adjournment when it is sought. Where an adjournment is refused, an appellate court will not intervene unless it is shown that the Tribunal has not exercised the discretion judicially or where its exercise was based upon wrong principle or was plainly unjust. It is not enough that the appellate court would have granted the adjournment if the court had been in the position of the Tribunal: House v R [1936] HCA 40; (1936) 55 CLR 499; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 per Kirby P at 252; Sullivan v Department of Transport (1978) 20 ALR 325 per Deane J at 342."
In our view, those principles are equally apposite to consideration of whether the Tribunal should offer an adjournment, even where it was not sought.
As was said in Italiano v Carbone & Ors [2005] NSWCA 177 by Basten JA at [88]: "An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural [un]fairness it is usually necessary to show that a claimant 'lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment', as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]."
As explained in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
It is necessary to consider the allegation of error in this regard in the context of the history of the matter and what occurred at the hearing.
The fact that the directions for the appellant to lodge and serve its evidence and submissions prior to the hearing were sent to it, and that it did not comply, is now not in issue. Nor is there any allegation that the material relied upon by the respondent, and sent to the appellant prior to the hearing, was not capable of leading the Tribunal to the conclusions it drew and to make the orders it did.
In terms of what happened at the hearing, the relevant evidence before us in the appeal is as set out below.

The appellant's evidence of what occurred leading up to and at the hearing

Mr Toohill, who attended the hearing on behalf of the appellant, deposes in his statement of 3 November 2020 that: 1. He is the Service Manager of the appellant; 2. He was responsible for managing the complaint by the respondent; 3. He received the respondent's documents for the proceedings below on or about 2 September 2020 and provided them shortly thereafter to Mr Roe, the General Manager of the appellant; 4. He received a telephone call from the Member conducting the hearing at the allocated time on 2 October 2020, asking him how to contact a director of the appellant for the hearing; 5. He was surprised by the call as he had not seen a notice of the date for hearing; 6. He gave oral evidence to the Tribunal on behalf of the appellant of his opinion as to how the RV might be repaired and whether the issues with it were a 'major failure'. He also gave evidence as to how and when the issues could be repaired; 7. "Had he been given proper notice [of the hearing], he would have submitted written evidence for the [appellant] and, as part of that evidence, engaged an independent mechanic on behalf of the [appellant] to give a report as to whether the defect in the motor home was a major defect as alleged by the Respondent."
In a statement dated 9 November 2020, Mr Toohill added that: 1. when the Member called for the hearing, he advised her that he didn't know the hearing was scheduled for that day but that he could "assist with that matter"; 2. the Member told him he would need authority from a director of the appellant; 3. he then called Mr Roe, the appellant's General Manager, to obtain authority to appear for the appellant; 4. Mr Roe advised that he would seek that authority from a director of the appellant and have it sent - an email authority from the respondent was then sent (Mr Toohill said it was sent by Mr Roe whose position implied authority to authorise Mr Toohill); 5. the Member did not ask him why the appellant had not sent any evidence; 6. That the Member 'spoke briefly in relation to the proceedings' but he did not recall precisely what was said; 7. He does recall the Member saying words to the effect of 'We are here to make a decision today' but could give no context to that comment; 8. That after Mr Vallender's evidence, the Member asked him a question to the effect of "[d]o you have anything to say in response to what the appellant says?"; and 9. That the Member did not otherwise explain that he could cross-examine Mr Vallender, or why it might be important to do so.
In a third statement, dated 22 January 2021, which was lodged without leave but not objected to by the respondent, Mr Toohill added, relevantly, that: 1. he had read the respondent's statement in the appeal proceedings, which we will refer to below; 2. if he did not expressly refer to a matter raised by Mr Vallender, it did not mean he agreed with it; 3. he denied an assertion by the respondent that he (Mr Toohill) was explicitly told by the Member at the hearing that he could cross-examine the respondent; 4. apparently acknowledging the correctness of an assertion by the respondent that he was asked by the Member whether he disagreed with anything said by the respondent in his evidence, Mr Toohill impliedly denied that he said "[n]o" and instead asserted that he said "I have never refused to talk to him."

The respondent's evidence of what occurred at the hearing

Relevantly, the respondent says that: 1. when the Member called Mr Toohill for the hearing, she enquired of him as to whether he was ready to proceed and his response was that he "was recently on annual leave and left the matter to be attended to by [his] manager"; 2. Mr Toohill, in responding to questions by the Member, indicated that: he was aware the final hearing was scheduled that day; that he was aware of the substance of the proceedings; that he had the respondent's material and the directions made for the filing of material by the parties, and that he was authorised by Mr Roe to appear for the appellant; 3. the Member explained, at the outset of the hearing, how the hearing would be conducted including giving an overview of what the issues in dispute appeared to be and that the central issue for determination was whether there was a major failure in the RV; 4. after the respondent's evidence, the Member asked Mr Toohill a series of questions about the issues in dispute; 5. the Member asked Mr Toohill whether he disagreed with anything the respondent had said, and Mr Toohill said "no"; 6. the Member said words to the effect of "Mr Toohill, do you want to cross-examine Mr Vallender? This is your chance to ask him any questions in relation to these proceedings." The respondent alleges that Mr Toohill replied "[n]o".
Neither party sought to cross-examine the deponents of the fresh evidence allowed in the appeal. Given the nature of these appeal proceedings, and so as not to prejudice the appellant by the lack of an available recording of the hearing below, we will determine Grounds Two (a), (b) and (c) only on uncontested evidence or, where there is conflict in the evidence, by accepting Mr Toohill's evidence on those issues.
Where Mr Toohill has failed to avail himself of an opportunity to comment on a contention made by the respondent, though, we will accept the respondent's evidence as unchallenged. Having taken an unsolicited opportunity to lodge evidence out of time in the appeal, specifically in response to that of the respondent, we are not satisfied that the appellant should be allowed to rely on Mr Toohill's assertion that "[i]f he did not expressly refer to a matter raised by Mr Vallender, it did not mean he agreed with it."
We will proceed on the basis that: 1. the appellant was on notice of the conciliation and hearing on July 2020 and the directions made for the preparation of the final hearing, and was given notice of the substantive hearing on 2 October 2020, by contemporaneous notices from the Tribunal; 2. Mr Toohill was authorised to act in relation to the dispute by the appellant; 3. Mr Toohill was aware of the proceedings by no later than 28 May 2020; 4. on 2 September 2020, Mr Toohill received the respondent's material, which included the Tribunal's order of 23 July 2020 indicating that the appellant's material was to have been filed by 21 August 2020; 5. nothing was filed by the appellant; 6. no extension of time was sought; 7. no enquiry was made with the Tribunal as to the date fixed for the hearing; 8. whilst the appellant company was not legally represented, it should not be inferred to be commercially naïve, given that: 1. it engages in business in the sale of items of high value; and 2. it has two directors and employs a General Manager and a Service Manager; 1. the Member explained, at the outset of the hearing, how the hearing would be conducted, including giving an overview of what the issues in dispute appeared to be and that the central issue for determination was whether there was a major failure in the RV (given that this was set out in some detail by Mr Vallender and not challenged by evidence from Mr Toohill.)

Ground Two (a) - That the Tribunal denied the appellant procedural fairness, in that it failed to explain the nature of the proceedings to a self-represented litigant.

As we have found, above, this allegation is not made out. We accept the unchallenged evidence of Mr Vallender in this regard.

Ground Two (b) - That the Tribunal denied the appellant procedural fairness in that it failed to explain to the appellant that it was permissible to cross-examine the respondent as to the validity of the claims being made in the proceedings below, and the role of cross-examination in a contested hearing.

Did the Tribunal proceed in breach of s 38(5)(b) of the Act?

The specific terms of s 38(5)(b) of the Act, requires the Tribunal, 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.
As can be readily seen, there can be no proper suggestion that the Tribunal proceeded in breach of s 38(5)(b) of the Act, as there is no allegation that Mr Toohill requested an explanation of any relevant issue from the Tribunal.
For completeness, we would record that, pursuant to s 38(5)(c) of the Act, the Tribunal was required to ensure that the parties had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. There is no proper suggestion that the Tribunal did not do so. Indeed, the Tribunal appears to have allowed the appellant to lead evidence and make submissions beyond those allowed by a timetable for it to do so, given in advance of the hearing. The only potential prejudice flowing from that was to the respondent.

Was the Tribunal obliged to explain to the appellant that it was permissible to cross-examine the respondent as to the validity of the claims being made in the proceedings, and the role of cross-examination in a contested hearing?

Proceeding on the basis of Mr Toohill's evidence at its highest, we will adopt the position that the Tribunal did not tell Mr Toohill that he may wish to cross-examine the respondent, or explain why he might want to do so.
There is nothing in s 38(5) of the Act, or elsewhere, which specifically requires the Tribunal to allow cross-examination of a witness in proceedings.
We note the comments of another Appeal Panel, constituted by the President and a Deputy President of the Tribunal, in Janis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99: "31. However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings: Aronson and Groves, Judicial Review of Administrative Action (6th ed 2017) at 612, citing O'Rourke v Miller (1985) 156 CLR 342 at 353 (per Gibbs CJ), Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 595-596 (per Flick and Perry JJ) and other cases. 32. We referred earlier to s 46 of the NCAT Act which provides power for the Tribunal itself to call, examine and cross-examine witnesses. In comparison to legislation establishing other state civil and administrative tribunals, the NCAT Act does not expressly provide for a general right of the parties to cross-examine or examine witnesses (see e.g. s 102 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) and s 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)). Rather, what is provided for by s 38 of the NCAT Act is that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural rules do not provide, and may inquire into and inform itself on any matter in such manner as it sees fit, subject to the rules of natural justice. As Harrison J found in Cheung v Yang [2013] NSWSC 1694 at [60] (in relation to s 28 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which was in much the same terms), it is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness."
Here, Mr Toohill's evidence does not place into contention that he was asked by the Member whether he disagreed with anything the put forward by respondent. He says that he responded, "I have never refused to talk to him." Given that response, the Member was entitled to assume that this was the only aspect of the respondent's evidence that Mr Toohill disagreed with.
Where that issue was, if relevant at all, peripheral to the real issues in dispute, the Member was entitled to proceed on the basis that cross-examination of the respondent was otiose and to dispense with cross-examination: Cheung v Yang [2013] NSWSC 1694. No error is disclosed, and the appellant was not denied procedural fairness.

Ground Two (c) - That the Tribunal denied the appellant procedural fairness in that it failed to make enquiry as to why the appellant was unaware of the date for the hearing and advise it was possible to seek an adjournment if it felt prejudiced.

Did the Tribunal proceed in breach of s 38(5)(b) or (c) of the Act?

The suggestion that Tribunal failed to comply with s 38(5)(b) of the Act fails on the same basis as it did in the previous ground. No request was made for an explanation by Mr Toohill.
Regarding s 38(5)(c) of the Act, the obligation "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" does not place an absolute obligation on the Tribunal to consider allowing a defaulting party an adjournment where they file no evidence or are unprepared for a hearing. The word "reasonable" in the section must have some work to do. In Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 595-596, when considering s 39 Administrative Appeals Tribunal Act 1975 (Cth), which was in similar terms to s 38 of the Act, Deane J observed, at 343: "Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
What is reasonable will depend on the particular circumstances of the matter before the Tribunal. Its assessment involves a broad evaluation of the relevant factors and calls for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right.
We are not satisfied that an allegation that the Tribunal failed to comply with s 38(5)(c) of the Act is made out here. In our view, the respondent was given a reasonable opportunity, both through the directions made on 23 July 2020 and by being given latitude to lead more evidence through Mr Toohill and make oral submissions at the hearing. It is not alleged that either activity was curtailed by the Tribunal.

Was the Tribunal otherwise required to make an enquiry as to why the appellant was unaware of the date for the hearing and advise it was possible to seek an adjournment if it felt prejudiced?

The first relevant issue is that the appellant did not request an adjournment, or have Mr Toohill advise the Tribunal that it alleged that the Company, as opposed to Mr Toohill, was unaware of the hearing.
This is so despite the fact that both Mr Toohill and Mr Roe were involved in arranging Mr Toohill's appearance at the hearing on the day. They were also invited to confirm Mr Toohill's authority to participate with a Director of the Company, which was done by Mr Roe.
Similarly, there is no suggestion that the appellant sought to advise the Tribunal that it had been unaware of the prior directions for service of its material until 2 September 2020, which was the latest date upon which it was notified the proceedings were on foot, or that it took any proper steps to protect its position thereafter. The Company's strongest evidence in this regard is that Mr Roe, on or about 11 September 2020, "attempted to get in touch with the solicitors for the [respondent] to understand what was going on". Mr Roe says he left a message with the respondent's solicitors, of an unexplained nature, which was not returned.
Mr Toohill says that, when contacted by the Tribunal for the hearing, he said the following words: "I'm sorry, I didn't know this was on today. I didn't get any notices, but I can assist with the matter." The member then arranged for Mr Toohill to source authority to represent the company.
Mr Toohill says that, later, the Tribunal called him back, having received the authority, and asked him whether he had the respondent's evidence. He acknowledged that he had.
Whilst the appellant focusses on Mr Toohill's evidence that the Senior Member did not ask him why the Company had not filed any material, or if it sought an adjournment, that exchange indicates that Mr Toohill had two specific opportunities to tell the Tribunal that the Company was prejudiced by what it alleged was an absence of Notice of Hearing or of the need to comply with the directions, prior to 2 September 2020.
A decision maker may be obliged to offer an adjournment, where appropriate, even if none is sought: Italiano v Carbone [2005] NSWCA 177. Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22].
In determining whether an adjournment should be offered, or granted, the Tribunal is not confined to applying the traditional view that regard is to be had only to the interests of the litigants in the particular case. It may also take into account: the effect of an adjournment on its own resources; the interests of litigants in other cases awaiting hearing in the Division; the working of the listing system of the particular list; and the importance in the proper working of that system of adherence to dates fixed for hearing.
As a majority High Court noted, over 25 years ago, "[w]hat might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources": Sali v SPC Ltd (1993) 67 ALJR 841 (at 843-844).
In appropriate cases, a party who fails to comply with directions may properly be left to bear the consequences of their default: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Bibah Formwork Pty Ltd v Radray Constructions Pty Ltd [2003] NSWSC 599.
Here, an adjournment on its own would not have cured the difficulty the appellant found itself in, because it had not complied with the directions for the filing of its evidence. It would also have required an extension of the timetable.
On the file before the Member determining the application was evidence of the Tribunal having sent the following documents to the appellant, at either or both of its registered and business addresses, prior to the hearing: 1. A copy of the respondent's application; 2. A Notice of Conciliation and Hearing by telephone (which the appellant did not attend); 3. A copy of the directions made for the parties to file their material, dated 23 July 2020; and 4. A Notice of Contested Hearing by telephone, dated 28 July 2020, which advised the appellant that the final contested hearing was set for 2 October 2020.
In light of that, and Mr Toohill's advice to the Member that he was "able to assist with [the] matter"; where no adjournment was requested or explanation proffered as to why the appellant had filed no material, we are not satisfied that a proper balancing of the issues to be considered by the Tribunal required it to proactively inquire into the appellant's non-compliance or to offer an adjournment.
Unlike the position in Walsh, Aida v Concrete Concepts (Aust) Pty Ltd [2013] NSWSC 72 (Walsh), the appellant was not an individual consumer as applicant, who engaged with the Tribunal in a way which made it plain that she misunderstood the nature of probative evidence in her claim. There was nothing in what was said by Mr Toohill which should have put the Tribunal on notice that the appellant failed to apprehend the nature of the proceeding (c.f. Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143).
In Walsh, the Court expressed the view, at [50,] that: "I accept that if one party had not produced any evidence at all in support of their case, the Member's obligation may have extended to the requirement that he or she explain to that party that should they wish to proceed to a hearing and not obtain evidence to support their case, this will result in their claim being unsuccessful at the hearing." (Emphasis retained)
Each such matter must be considered in context, however. Here, the appellant, despite knowledge of the proceedings, did nothing to prepare its case for hearing. Even after hearing the respondent's case examined in the proceedings and being asked if it disagreed with anything said by the respondent in his evidence, the appellant, through Mr Toohill, challenged only the evidence of Mr Vallender that Mr Toohill did not engage with him in resolving the dispute.
It was not unreasonable for the Tribunal to infer from that response that this was the only issue in contest and that this was the basis for the appellant lodging no evidence.
This ground is not made out. We should add that we have reached that conclusion by examining the matter from a focus on the appellant's conduct and position. The Tribunal was also required to consider the likely opposition to an adjournment from an individual applicant who had set aside the time and resources to prepare for hearing and be available for the notified hearing date.

The appellant's failure to prepare its case in the appeal

Finally, we would record that, even if we are found elsewhere to be wrong in our assessment of whether the Tribunal should have offered the appellant an adjournment or explicitly explained the possibility of asking to cross-examine the respondent and the basis for doing so, we would still not have allowed the appeal.
We are satisfied that we could reach that conclusion on either of two bases.
Firstly, the appellant has not lodged sufficient evidence to indicate that it may have suffered practical injustice if the decision is allowed to stand. Apart from the evidence contained in a letter from the National Service Manager of Iveco trucks which, on one view, may lead to the conclusion that the coolant leak has been repaired at relatively minor cost, there is no evidence as to the nature of the work to repair the totality of the other faults in the vehicle.
Secondly, we are satisfied that the terms of s 81 of the Act allow us sufficient discretion to decide what orders are appropriate in the appeal, even if we had been satisfied that an error on a question of law had been made. It has long been accepted that not all findings of error will lead to appellate intervention or a change to the decision on judicial review.
For example, In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ said, at [37]: "I agree with the Full Court in Lamb v. Moss (at p 312; p 550 of ALR) in thinking that the court has a discretion whether to grant or refuse relief by way of judicial review under the ADJR Act. The references in s.16 of the ADJR Act to "in its discretion" are eloquent on that score. Further, I agree that only in most exceptional circumstances would it be appropriate to grant relief in respect of a decision given by a magistrate in committal proceedings: see at p 326; p 564 of ALR. The delays consequent upon fragmentation of the criminal process are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v. Wilson [1989] HCA 68; (1989) 64 ALJR 140."
As can be seen, the nature and extent of the discretion derives from the power given to the appellate body.
Section 81 of the Act provides, relevantly, that: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, …
We are satisfied that the use of the phrase "such orders as it considers appropriate in light of its decision on the appeal" in s 81 of the Act allows us a broad discretion, to be exercised judicially in furtherance of the guiding principle in s 36 of the Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The recreational vehicle which is the subject of this dispute has been available to the respondent since October 2020. In November 2020, the Appeal Panel directed the parties to lodge any fresh evidence they relied upon in the appeal. By a notation to those directions, the parties were also advised that "[a]t the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make".
The grounds of appeal in this matter, particularly in the absence of the recording of the proceedings and reasons below, may properly have enlivened our discretion to decide to deal with the appeal by way of new hearing. During the hearing of the appeal, we enquired of the appellant whether it had complied with that notation, and would be ready to proceed if we decided to deal with the appeal by way of new hearing. It was not in a position to proceed. Nor had it apparently prepared or obtained the necessary evidence to demonstrate that it may be entitled to a different decision after a new hearing, despite the directions.
The appellant relied upon Hare v Harmer [2009] NSWCA 68, as the basis for its decision not to comply with the direction given to it to be ready to proceed with a new hearing. There, Sackville AJA, with McFarlan JA and Handley AJA in agreement, examined the proper exercise by the Court of Appeal of the powers conferred by s 127 of the District Court Act 1973 (NSW) and s 48 of the Supreme Court Act 1970 (NSW). The Court reviewed the interplay of those powers with the power conferred by s 75A(5) of the Supreme Court Act and that conferred by Pt 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW). It examined the proper considerations for the Court in ordering a new hearing in such an appeal.
That decision has no bearing on whether the appellant should have complied with directions made in this appeal. A new hearing as contemplated by s 80(3) of the Act is a hearing de novo: Yuen v Thom [2016] NSWCATAP 243. That the Appeal Panel has discretion to move to a new hearing, where it considers that the grounds for appeal warrant it, has not been challenged. The power is explicitly contained in s 80(3) of the Act.
Mr Toohill's assertions that: 1. "had he been given proper notice [of the hearing]" of the proceedings below, "he would have submitted written evidence for the [appellant] and, as part of that evidence, engaged an independent mechanic on behalf of the [appellant] to give a report as to whether the defect in the motor home was a major defect as alleged by the [r]espondent,": Statement 3 November; and 2. "If this matter is re-heard then I will: 1. put together written evidence in relation to my interactions with Mr Vallender and his solicitor; 2. rely on the letter and email from Iveco in support of Sydney RV's contention that the issue with the motor home was not a major failure; and 3. engage an expert, being a mechanic, to also give an expert opinion as to whether the issue with the motor home would be considered a major failure": Statement 9 December; ring hollow in those circumstances.
Had we allowed the appeal, given the appellant's approach the matter would need to have been remitted to the Division, presumably with directions to be made for the filing of fresh evidence if there was to be any utility in the process. Even if we decided to conduct the appeal as a new hearing on a later date, similar delay and consequences would arise. That extended delay, and the associated inconvenience to the respondent and burden in terms of further utilisation of the resources of the Tribunal, would not be warranted.
Whilst the recreational vehicle in question was expensive, the cost of the vehicle does not represent the extent of any prejudice to the appellant, which retains a reasonably new vehicle that it asserts is "capable of being repaired in due course": Statement of T Toohill, 3.11.20. It retains the ability to repair and resell the vehicle, and mitigate any prejudice caused by any financial loss.
On the other hand, the ongoing cost to each party if the matter proceeds may be substantial, both in terms of delay and expenditure of time and money on expert evidence and legal fees and on further attendances at hearings during work hours.
Having now had two separate chances to comply with directions made in proceedings in relation to this dispute, with reasonable opportunities to put its case in both, we are not satisfied that the interests of justice in this matter and the guiding principle for the Tribunal require us to provide the appellant with a third.
The appeal should be dismissed.
In the event that he was successful in the appeal, the respondent sought his costs. As the terms of r 38A of the Civil and Administrative Rules 2014 are engaged, and the amount in dispute in the appeal exceeds $30,000.00, the usual order would be for the appellant to pay the respondent's costs of the appeal, on the ordinary basis as agreed or, if not agreed, then assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A. We see nothing which would lead us to depart from that course, and so order.

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: 07 May 2021

Victorian Civil and Administrative Tribunal Act 1988(Vic)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (31)

Cited By (3)