Waters v Waghorn

The set aside decision

1. The application to set aside the first instance decision was received by the Tribunal on 25 January 2016, although it was dated 18 January 2016. This was six days outside the statutory time limit under regulation 9(3) of the Civil and Administrative Tribunal Regulations 2013 (NSW), which prescribes that an application to set aside an order must be made within seven days of the decision being made.
2. The Tribunal noted that the applicant had requested an extension of time to file the application, but the application was nevertheless dismissed on the basis that although a request had been made to allow time to obtain a medical certificate, evidence to support her case and an opportunity to obtain the reasons for decision, not one of those reasons explained the delay in bringing the application to set aside the decision.
3. The Notice of Appeal asserts that there was a further medical certificate from Dr Jamil dated 23 January 2016, provided to the Tribunal. The Appeal Panel was provided with a copy. Dr Jamil states, in effect, that the events referred to in the appellant's application to set aside the first instance decision were accurate and that the appellant had been diagnosed as having suffered a major traumatic event resulting in a diagnosis of "post-traumatic stress disorder (PTSD)" and further that she had deteriorated in recent weeks. This document was not one of the annexures referred to in the application to set aside the first instance decision (which was dated 18 January but received by the Tribunal 25 January). This medical certificate was accordingly not part of the materials filed with the application. Whilst the notice of appeal states that the document was both emailed and posted to the Tribunal, the document does not appear on the Tribunal's file and plainly was not drawn to the Tribunal's attention on the application to set aside the original orders.

Application to extend time to appeal the first instance decision

1. The application to extend time to appeal the first instance decision was supported by a medical certificate from Dr Dina Jamil dated 21 March 2016. Dr Jamil refers to her two earlier medical certificates (referred to above) and reiterates that due to the appellant's loss of her husband to suicide, her son's mental health issues and dealing with family matters, the appellant had not been in a stable state to make rational decisions and that even at the time of writing, her anxiety and depression was causing a loss of concentration and sleep.
2. The application to extend time was also supported by an expert report from a Consultant Forensic Psychologist, Tim Watson-Munro, dated 20 April 2016. He concludes that the appellant is suffering Post Traumatic Stress Disorder and this "previously highly competent individual" is now "unable to cope on a day-to-day basis". He considers it will take three to six months to stabilise her condition and that "she was in no way being wilful nor obfuscating in failing to attend the requirements referable to NCAT".
3. Further, the appellant relied on documentary evidence in relation to the substantive dispute to demonstrate that the substantive appeal has prospects. In the underlying claim, the respondent asserts that the cat was not suitable for show/breeding purposes because it has a condition known as cryptorchidism or in the alternative it was in any event unsuitable for breeding as it had only one descended testicle (the cat has now been de-sexed). The appellant's evidence is to the effect that prior to delivery to the respondent, she had the cat checked by a vet and it was confirmed that, at that time, the cat had two descended testicles; also, a blood test was negative for hypertrophic cardiomyopathy, a necessary precursor condition to cryptorchidism. The respondent challenges the sufficiency and cogency of this evidence.
4. The appellant submitted that the Appeal Panel should allow the extension of time to appeal, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) on the grounds identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 1. The length of the delay is not considerable, especially in light of the circumstances that explain the delay and the context, including that an application to set aside the decision was filed. The first instance decision was delivered 12 January 2016 and the Notice of Appeal was filed 24 March 2016. The appeal should have been lodged within 28 days from the day the appellant was notified of the decision at first instance: Civil and Administrative Tribunal Rules 2014 (NSW) r 25(4). The Appeal therefore, was filed just over a month late. 2. The reason for delay is the significant health issues; and in the interim the appellant had not simply sat on her hands, but had attempted to have the first instance decision set aside. It is notable that an appeal from the decision to refuse to set aside the first instance decision was filed within time. 3. There are sufficient prospects for success, as evidenced by the documentary material, such that the granting of an extension would have utility. 4. Whilst there is prejudice to the respondent in the nature of a short time delay and the need to invest in further resources to deal with the appeal, these costs are minimal when taking into account that the original application was to be heard by phone and that on the appeal the respondent appeared by phone. Further, this is not a time sensitive matter, as demonstrated by the fact that the respondent was made aware, by her vet on 2 October 2014, that there was a problem with the cat, but did not bring the underlying proceedings until 26 November 2015.
5. The respondent contended that the prejudice was in having to prepare, a second time, for the Tribunal hearing and also for the appeal. However, it was not suggested that the time delay itself caused any prejudice.
6. The Appeal Panel is satisfied that the medical evidence establishes that the delay in filing the Notice of Appeal was caused by the ill health of the appellant which in turn was caused by the suicide of her husband and the mental health issues of her son attendant upon her husband's death.
7. In so saying, the Appeal Panel has had in mind the remarks by the Court of Appeal in Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 and at [4]: Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.
8. We have also considered Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 per Barrett J at [22]: All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
9. Here, the evidence of the forensic psychologist was in appropriate expert evidence format. Relevantly, he was suitably qualified and identified the reasoning for his conclusions. The underlying facts, such as the death of the appellant's husband were not disputed. The respondent did not adduce any evidence to counter the medical opinion. Accordingly, there has been provided a reasonable explanation for the delay.
10. Furthermore, the time delay of a little over a month is small in circumstances where an application to set aside the decision was lodged and an appeal was lodged within time against that decision. It is notable that an application to set aside a decision may not be filed where an appeal has been lodged: reg 9(5) of the Civil and Administrative Tribunal Regulations 2013 (NSW). So, this too explains at least part of the delay.
11. Accordingly, the Appeal Panel grants an extension of time to appeal the first instance decision.

Jurisdiction on appeal

1. An appellant to an internal appeal may appeal as of right on any question of law, or with the leave of the Appeal Panel on any other ground: s 80(2) of the Act.
2. The Amended Notice of Appeal identifies the ground of appeal as follows: The Tribunal erred in law by denying the appellant procedural fairness by refusing an adjournment following the appellant's disclosure to the [Tribunal] of her late receipt of the application and substantial personal difficulties.
3. In substance, the ground of the appeal is to the effect that that due to no wilful disrespect of the Tribunal, but due to ill health and traumatic personal issues, the appellant was unable to prepare and present her case. Notwithstanding that the ground of appeal refers to the refusal to grant an adjournment (which is an interlocutory decision), the error contended for is that by hearing and determining the proceedings in the appellant's absence, the Tribunal breached the rules of natural justice. This is accordingly an appeal from the final determination of the Tribunal.
4. To the extent that leave to appeal was necessary, the appellant sought such leave on the grounds identified in Schedule 4, cl 12 of the Act and as explained by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, at [80]-[84], a breach of procedural fairness could render a decision unfair and inequitable such that the warrant for granting leave would, subject to questions of utility, be made out. Further, it was contended that leave should be granted on the significant new evidence (being the evidence from the forensic psychologist) which demonstrated that the appellant had suffered a miscarriage of justice.
5. The Appeal Panel is satisfied that the ground of appeal raises the question whether the appellant was denied procedural fairness. This is a question of law: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8]; Italiano v Carbone [2005] NSWCA 177 at [5]; Prendergast v Western Irrigation [2014] NSWCATA 69 at [13]. Accordingly, the appeal lies as of right.

Procedural Fairness

1. The Tribunal has a duty to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence.
2. The appellant's contention is that despite having notice of the hearing, due to her ill health and personal circumstances, she was unable to avail herself of the opportunity to be heard and therefore, in the circumstances, was denied procedural fairness.

Further evidence

1. Here, in order to demonstrate that there has been a denial of procedural fairness, the appellant seeks to adduce medical evidence that was not before the original decision maker. As noted by the Appeal Panel in Yuen v Thom [2016] NSWCATAP 243 at [14]-[20], where an Appeal Panel is not determining an appeal by way of a new hearing (pursuant to s 80(3) of the Act) the appeal is akin to a rehearing and if appropriate to the grounds, the Appeal Panel may receive further evidence.
2. Appeals on questions of law do not readily lend themselves to the receipt of further evidence, as the appeal is limited to the particular question of law. The question of law is the subject matter of the appeal: see Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 at [22]. In many cases, error of law will be established solely on the material before the decision maker (such as where the exercise of discretion has miscarried): House v The King (1936) 55 CLR 499 at 504-5. However, in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13]-[14], a majority of the Full Court of the Federal Court of Australia held, in the context of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), that an appeal on a question of law concerning the denial of procedural fairness may warrant the receipt of evidence that was not before the original decision maker, in order to prove the denial of natural justice.
3. The Appeal Panel accepts that where the question of law is whether or not there has been a denial of procedural fairness, it may be appropriate to look at material that was not before the original decision maker: this may be the only way to prove the breach. This is for the reason that whether there has been a denial of procedural fairness depends on all the circumstances: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. There are a myriad of cases concerning appeals on the grounds of a breach of procedural fairness that suggest as much. For instance, in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [9], [13] and [26], the Full Federal Court received evidence to establish the breach of procedural fairness, namely that the applicant received the hearing notice two days after the hearing date and had to seek help to read the letter due to his illiteracy. In Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129, a single Judge of the Federal Court received evidence from the Post Office to establish that the applicant had not received an adjournment notice in the mail.
4. In some of the authorities concerning procedural fairness, the material that could demonstrate the breach of procedural fairness was with the Tribunal at first instance, but through error or inadvertence was not provided to the original decision maker: for example in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 the applicant had provided notice of his illness, and a request for adjournment to the Registry, but this was not provided to the decision maker. However, in other cases (such as where the hearing notice goes astray) the error was unknown and unknowable by the Tribunal: see, for example, Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28.
5. What emerges from a review of authorities is that, in order to demonstrate breach of procedural fairness, it is necessary to point to something outside the control of the party, which led to the denial of procedural fairness. It would not, for example, be sufficient if the party, having notice of the hearing, simply decided to not attend the scheduled hearing.
6. An appeal on the grounds of breach of procedural fairness is unlikely to succeed when the party had notice of his or her unavailability and through contumelious or dilatory conduct failed to appear. Where a party becomes aware of his or her unavailability for a scheduled hearing, it is appropriate to seek an adjournment and put forward appropriate evidence to justify the application for an adjournment.
7. The appellant here seeks to rely on the expert evidence of Tim Watson-Munro and the 3 medical certificates of Dr Jamil to demonstrate that at the relevant time she was not competent to attend to the Tribunal's requirements including as to preparation and hearing of her case. The appropriate medical evidence was not before the Tribunal at the initial hearing, not by reason of any contumelious, dilatory or careless conduct on the part of the appellant, but by reason of her total incapacity to prepare for and attend the hearing.
8. As already noted, where a party is aware that he or she is unable to attend a scheduled hearing it is incumbent on that party to seek an adjournment and file appropriate evidence to support such an adjournment. In the event the adjournment is not granted, that party is expected to attend. Nevertheless, it must be accepted that where the adjournment application is due to ill health, there may be cases where the applicant is unable or incapable of acquiring the requisite evidence in time. We note that the appellant sought an adjournment, but by reason of her medical condition was unable to produce comprehensive medical evidence.

Conclusion with respect to the appeal of the first instance decision

1. On the additional medical evidence now before the Appeal Panel, the Appeal Panel is satisfied that for reasons outside the appellant's control, she was not in a position to prepare or present her case; and that in hearing the case in the appellant's absence, the appellant was denied natural justice.
2. As mentioned above, in the ordinary course, the mere fact that a proceeding is determined in the absence of a party does not constitute a breach of procedural fairness. Further, it is incumbent on a party with notice of a hearing, to make any necessary adjournment applications promptly and with the support of logically probative evidence. In the usual case, a doctor's certificate that merely specifies that the person is "unfit", may not suffice.
3. This is not, however, a case where the appellant has merely failed to provide the requisite evidence for an adjournment application. This is not merely a case where she has failed to avail herself of the opportunity, provided by the Tribunal, to present her case. The expert evidence supports her contention that she was, at the requisite time, unfit either to make a cogent adjournment application or to attend and present her case. In circumstances where the hearing occurred at a time when the appellant was unfit to prepare her case or attend to present her case, the appellant was not provided with an opportunity she could avail herself of, to present her case or be heard. Through no fault of her own she was not able to be heard.
4. As the Tribunal determined the matter in the absence of the appellant and her evidence, she was not afforded a hearing and the matter was not determined on all relevant material.
5. Nevertheless, if the Appeal Panel could conclude that the denial of procedural fairness would have made no difference to the outcome of the proceedings, then it would decline to grant relief: see Stead v State Government Insurance Commission (1986) 161 CLR 141 ("Stead"), at 145-146. Here however, as discussed above in the context of the application to extend time to appeal, there is a live contest between the parties as to the substantive dispute and so it may not be said that allowing the appeal on the grounds of procedural fairness would be futile.
6. The Appeal Panel is mindful that the Tribunal, at first instance, did not have the extensive medical evidence that the Appeal Panel now has before it and that the medical certificate that the Tribunal did have was, on its own and in light of the comments of the Supreme Court referred to above, inadequate to ground an adjournment.
7. In the circumstances, it is appropriate to set aside the orders of the Tribunal at first instance and remit the matter to be determined again, on such evidence as the Tribunal sees fit to receive.

The appeal of the set aside decision

1. Having regard to the Appeal Panel's decision in relation to the appeal against the underlying decision, it is unnecessary to consider the appellant's appeal against the refusal to set aside the first instance decision.

Jurisdiction of the Tribunal

1. We observe that the respondent is a resident of Queensland whilst the appellant is a resident of New South Wales. By virtue of s75(iv) of the Constitution, the High Court has original jurisdiction in all matters between residents of different States. Section 77(iii) of the Constitution permits the Commonwealth Parliament to make laws "vesting any court of a State with federal jurisdiction". Section 39 of the Judiciary Act 1903 (Cth) is such a law. Pursuant to s39(2), subject to certain limitations of no present relevance: The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it
2. Accordingly, the Tribunal could have jurisdiction to determine any matter between residents of different States only if it is a "Court of the State" within the meaning of s 39 of the Judiciary Act. Unlike the legislation establishing the equivalent Tribunal in Queensland, the Act does not state that this Tribunal is a Court: see Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164. Even if it did so provide, whether or not the Tribunal is a Court is a complicated question: Trust Company Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) (2006) 66 NSWLR 77 at [26] - [29]. The Appeal Panel did not hear the parties on this issue and, as we have determined to set aside the first instance decision and remit the matter for reconsideration, it is not necessary that we resolve it and it would be inappropriate that we do so.

Conclusion and Orders

1. The Appeal Panel makes the following orders: 1. Extend time for the appellant to file the appeal against the decision of the Tribunal in GEN 15/63753 dated 12 January 2016 until 24 March 2016. 2. Allow the appeal against the decision of the Tribunal in proceedings GEN 15/63753 dated 12 January 2016. 3. Set aside orders (1), (2) and (4) made in proceedings GEN 15/63753. 4. Remit the proceedings to the Consumer and Commercial Division for hearing on such evidence as the Tribunal sees fit.

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: 17 November 2016