This is an appeal against a decision of the Tribunal in the Consumer and Commercial Division which was made on 27 November 2017. The appeal is made by the respondents in the Tribunal proceedings. The issue in the appeal concerns the non-appearance of the respondents at the Tribunal hearing which led to orders being made in their absence.
[2]
Background
The applicant in the Tribunal matter, Mr Roshdy Farag, entered into an agreement with Request International Migrant Services on 1 December 2014 for the provision of migration services. A schedule of fees was set out in the agreement. Under the agreement, the services were to be provided by a registered migration agent, Mr Hulio Gash. At the time, Mr Farag was in Australia on a tourist visa and wished to be granted a partner visa. Before being able to apply for such a visa, however, he needed to obtain a waiver of a condition on his tourist visa - a "No further stay" condition.
It appears that various services were provided under the agreement by Mr Gash acting as a migration agent over a period of about two years and various payments were made by Mr Farag, although the extent and nature of those services is in dispute. Some invoices were issued to Mr Farag by Request International Migrant Services and others by Tachnat Pty Ltd. The agreement was terminated by Mr Gash in early 2017.
Tachnat Pty Ltd v Farag [2018] NSWCATAP 67 | Case summary | Zoe
Mr Farag disputes the amounts charged for the services provided and also states he was charged for services which were not in fact provided. He made an application to the Consumer and Commercial Division of the Tribunal on 8 August 2017 seeking to be repaid certain monies.
When the matter came before the Consumer and Commercial Division Mr Farag and Mr Gash attended the first hearing. Directions were made about the provision of evidence on that occasion and Mr Farag and Mr Gash provided various documents in response. The matter was then listed for hearing on 27 November 2017 at 1:45 pm.
For reasons that are not clear from the papers available to us, when the orders were made at the hearing the respondents to Mr Farag's application were named as Tachnat Pty Ltd, Hulio Gash t/as Request International Migration Services and Philip Bashi t/as Request International Migration Services. Mr Gash did not attend the hearing and no other person or representative attended for the respondents. The hearing proceeded in their absence and orders were made that the respondents listed above pay Mr Farag $5,300.
At 2:08 pm the Tribunal Registry received an email from Mr Gash in which he sought an adjournment as he was unwell and unable to attend the hearing. It is apparent from the reasons for decision given by the Tribunal member on 27 November 2017 that she was not aware of the email from Mr Gash. Mr Gash subsequently provided a medical certificate dated 30 November 2017 which stated he had a medical condition and was unfit for work from 27 November to 30 November 2017 inclusive.
[3]
Grounds of Appeal
The Notice of Appeal filed by Tachnat Pty Ltd and Request International Migrant Services (which was signed by Mr Gash) stated that the decision of the Tribunal made on 27 November 2017 was wrong because Mr Gash was unable to attend the hearing because he was unwell and he wanted an opportunity to present his arguments and evidence in relation to the case.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified at paragraph [13] the following as questions of law:
1. whether there has been a failure to provide proper reasons;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether a wrong principle of law had been applied;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;
6. whether the Tribunal took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact; and
8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
We note that the Tribunal made orders personally against Mr Gash as well as against Tachnat Pty Ltd (a company of which Mr Gash is a director) and Mr Philip Bashi. Based on the reason put forward by Mr Gash, we discern the appeal ground to be that he was not afforded procedural fairness as he was not given a reasonable opportunity to present his case before the Tribunal made its decision on 27 November 2017.
[4]
Was there a denial of procedural fairness?
Failure to accord procedural fairness is a question of law under s 80 of the Civil and Administrative Tribunal Act 2013 (the Act) that does not require leave to appeal under Schedule 4 Clause 12 of that Act.
Under s 38(5) of the Act, the Tribunal has a duty to "take such measures as are reasonably practical" to "ensure that parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
Under cl 35(2)(a) of the Civil and Administrative Tribunal Rules 2014, the Consumer and Commercial Division of the Tribunal may hear and determine proceedings in the absence of a party if the Tribunal is satisfied notice of the hearing was duly served on the party. It is apparent that Mr Gash received the notice of hearing and was aware the hearing was to be held on 27 November 2017.
Mr Gash told us he was in Newcastle with his wife the day before the hearing and intended to come back to Sydney on the morning of 27 November 2017 to attend the hearing. He said he suffers from a chronic throat condition and it flared up overnight. He said that on the morning of the hearing he had a fever and was too unwell to travel. Mr Gash subsequently attended a doctor in Newcastle and obtained a medical certificate. While it would have been preferable that the medical certificate had provided further information about the level of Mr Gash's incapacity, we accept that he was unwell. Mr Farag indicated at the hearing that he would not oppose the appeal as Mr Gash had been ill on the day.
We note that Mr Gash did attempt to contact the Registry, albeit late in the piece and after the start time for the hearing. We also note that Mr Gash had complied with earlier directions of the Tribunal and had provided documents in support of his case. It appears that the essence of Mr Gash's case is that Mr Farag had been provided with all services as agreed and in accordance with the fees set out in the agreement with Mr Farag. We make no comment on the merits of Mr Gash's case.
We conclude that Mr Gash's illness prevented him from attending the hearing on 27 November 2017 to present his case. He attempted to contact the Registry, albeit after the hearing had commenced, but the Member was not made aware of Mr Gash's email at the time and Mr Gash's request for adjournment was therefore not considered. He was thus not afforded a reasonable opportunity to be heard.
We conclude that, as a result, Mr Gash was not afforded procedural fairness. We conclude that the denial of procedural fairness is such that the matter remitted to the Tribunal for re-hearing. The parties have agreed that there are no further documents to be provided and the remitted matter can proceed directly to hearing. Mr Gash agreed that the orders made to stay the operation of the orders made on 27 November 2017 should remain in force until further order of the Tribunal. We note that a sum of $385 has been paid to Mr Farag and the sum of $4,915 is presently held by the Registrar.
While the issue has not been raised before us, as noted above, orders were made by the Tribunal against three parties - Tachnat Pty Ltd, Hulio Gash t/as Request International Migration Services and Philip Bashi t/as Request International Migration Services. It is apparent that Mr Gash is not the owner of the business name, Request International Migration Services. Mr Bashi appears to own the business name Request International Migrant Services.
It is not clear to us from the material filed in the appeal which of these entities contracted with Mr Farag, although Mr Gash clearly provided migration advice as a migration agent. His evidence was that his company, Tachnat Pty Ltd, pays Mr Bashi a fee when Mr Bashi refers a client to the company. Mr Farag signed a document titled "Agreement for services and fees" bearing the name Request International Migrant Services and invoices were issued to him by both Request International Migrant Services and Tachnat Pty Ltd. We note that the correct identity of the respondent will need to be identified in the remitted matter.
[5]
Orders
1. Appeal allowed.
2. The matter is remitted to the Tribunal for re-hearing.
3. The stay order made by the Appeal Panel on 3 January 2018 remains in force until further order of the Tribunal.
[6]
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: 26 March 2018