Whear v Kids on Hayes Street Pty Ltd

Decision

Section 36 of the NCAT Act says that: 1. the guiding principle for the application of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") and the procedural rules, in their application to proceedings in the Appeal Panel, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings; 2. the parties are obliged to comply with directions and orders of the Tribunal (compliance is mandatory, not optional); and 3. the practice and procedure of the Appeal Panel 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.
The respondent is just as entitled to the just, quick and cheap resolution of the real issues in the proceedings as is the appellant.
It is the appellant's appeal. It is she who wishes to obtain orders on appeal in her favour, and it is her onus to supply the Appeal Panel with the material which is needed to decide the appeal in her favour. Indeed, she was ordered to do so. Compliance with those orders is mandatory, not voluntary - s 36(3) of the NCAT Act.
In this case, most critically, the material needed to decide the appeal included the sound recording or a transcript of the hearing before the Tribunal including the Tribunal's oral reasons.
The fee is $45 for a copy of the sound recording, and that fee may be waived in cases of hardship. There is no excuse for not supplying that sound recording in this case, and its absence means that the appeal must inevitably fail. That is because we cannot decide that the Tribunal erred when we do not know either the Tribunal's reasons nor the oral evidence which was given.
So much was explained to the appellant more than once during the hearing.
We also explained to the appellant more than once how an appeal was different to a hearing, how she needed to demonstrate error by the Tribunal, that an error was not simply the result arrived at by the Tribunal (with which she might disagree), but the error made in the Tribunal's reasoning process which cause the Tribunal to arrive at a wrong result.
Despite our explanations, and with no disrespect to the appellant who is not legally trained, her oral submissions amounted to no more than assertions that the Tribunal made wrong decisions and she proceeded to tell us what really happened. Whilst this approach may have been reasonable at a hearing, it was irrelevant to an appeal of this kind.
The appellant readily admitted that failing to obtain a copy of the sound recording was her error. Be that as it may, and despite explaining to the appellant the probable effect of a lack of the sound recording on her prospects of success on the appeal, no adjournment was sought.
As we have said, the appellant is legally untrained and is not legally represented. With no disrespect to her, her purported grounds of appeal and written submissions are all but indecipherable in terms of what they intend to convey.
Having regard to s 36 of the NCAT Act which requires that the practice and procedure of the Appeal Panel 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, we do not regard it as necessary to lengthen these reasons by attempting to recite, refine or paraphrase the appellant's submissions.
That is because, putting to one side the difficulty in understanding them, the drafted grounds of appeal and written submissions (as we understood them) were propositions that that could be made at a hearing but not on an appeal. That is, the submissions consisted of nothing other than lengthy submissions as to various facts and evidence (as well as the purported giving of further oral evidence) and why the Tribunal should have accepted the appellant's submissions on those facts.
In Mendonca v Legal Services Commissioner [2020] NSWCA 84 McCallum JA, with whom Basten and Leeming JJA agreed, in response to a submission by the unrepresented litigant in person that the Court "must ensure that a self-represented party is not disadvantaged", said at [21]: "However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point."
We have skimmed the voluminous documentary material the appellant has lodged and served in this case to see whether the Tribunal fell into any error in making its orders, but not in a partisan way and not to a degree which would absolutely ensure that the appellant has not missed some point. Nor, per Mendonca, are we required to go that far.
Of course, we are obliged to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal - Cominos v Di Rico [2016] NSWCATAP 5 at [13]. And we have done so to a degree we considered reasonable in the circumstances.
But there are limits to that obligation.
Some of those limits were described in Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 by Bell P, with whom Emmett AJA agreed. Some of those limits apply to the appellant's failure in this case to provide a sound recording, or transcript, and to the content of her written and oral submissions.
His Honour said (emphasis ours): [39] Whilst it may be accepted that some latitude may, in an appropriate case, be afforded to a litigant in person, and that the Court is empowered to waive any requirements of the UCPR in an appropriate case, it is important to keep in mind the remarks of Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18]: "In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. … Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of court. … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which may apply to any step which he is about to take." [40] The above passage was cited with approval by Garling J in Ryan v The Council of the City of Sydney [2018] NSWSC 265. At [45], his Honour noted that: "…while the Court has a duty to treat litigants in person fairly and to hear their arguments fully, the Court may not indulge the litigant with special treatment in a way that disfavours their opponent." [41] Similarly, in Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [183], Bryson JA remarked that: "Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. ... Without procedure, procedural directions and compliance, justice will not be done at all. …The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent's obligation to comply with the court's directions as less than important, or as superfluous."
It is true that the Tribunal is different to the Supreme Court, and in the Tribunal the parties are ordinarily not entitled to be legally represented. The Tribunal is also required to conduct its proceedings with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities - Moloney v Taylor [2016] NSWCA 199 per the Court at [30]. It is also to exercise its powers speedily and economically.
All of the considerations to which we have referred do not always pull in the same direction. It is always necessary to attempt to draw the appropriate balance in each case depending on its own particular circumstances between competing considerations.
For example, when faced with lengthy, unstructured assertions and misconceptions as we were presented in this case by the appellant's written material submitted in support of her appeal, one has to balance the obligation described in Cominos on the one hand, with avoiding any special treatment to a party as described in Ryan or a partisan analysis as referred to in Mendonca.
We have attempted to find that balance in this case. We explained to the appellant (more than once) that on an appeal an appellant had to show some error in the Tribunal's decision, but no attempt was made by the appellant to do so. We explained the difficulties she faced in proceeding with this appeal in the absence of a sound recording or transcript of the hearing, and we have given her written material some examination to ascertain whether error occurred. In our view we should do no more.
No error by the Tribunal has been identified. None is apparent to us.

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