These appeal proceedings arise out of the decision of the Consumer and Commercial Division of the Tribunal given on 24 May 2024 in which the appellant was ordered to pay the respondent $9,900.00.
The decision stated that the present appellant was to pay the present respondent the sum of $9,900.00 immediately. Under the heading "Reasons for decision' it was stated:
'Oral reasons were given'
In this appeal, the appellant sought to have that order set aside, setting out grounds of appeal which make a number of general complaints regarding the decision and seeking leave to appeal on the basis that (1) the decision was against the weight of the evidence and (2) significant new evidence was available that was not reasonably available at the time of the hearing.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] the Appeal Panel stated:
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where the Appeal Panel stated at [13]:
It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel 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. However, this must be balanced against the obligation to act fairly and impartially.
As the appellant was self-represented, in accordance with the authorities identified at [4] and [5] we have considered his Notice of Appeal and his submissions in support of the appeal to ascertain whether errors of law or grounds for leave emerge from this material which are in addition to those he has identified. In that regard, the appellant's grounds of appeal disclose that he seeks to re-visit the evidence which was given at the hearing to obtain a different result. He also states that:
'The member has no understanding of concreting and I find it unlawful that someone that has no knowledge of something is allowed to make such an uninformed decision.'
Wilcock v Intense Concrete Constructions Pty Ltd [2024] NSWCATAP 230 | Case summary | Zoe
The fact that a Tribunal member has no personal expertise in the subject matter of the dispute they are hearing is not a basis for an appeal, nor unusual considering that most Tribunal members have a legal background. A Tribunal member hearing proceedings is required to make findings based on the evidence and then via an appropriate reasoning process to apply the correct law to those findings. Section 62(3) of the Civil and Administrative Tribunal Act 2013 ('CAT' Act) states what is required when written reasons are required, namely that:
'A written statement of reasons for the purposes of this section must set out the following -
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.'
The appellant refers to one matter which may indicate a basis for leave on the ground that the decision was not fair and equitable in that he states:
'At one point she (the Tribunal Member) even said "I don't think I am in a position to make judgement on this case" Then all of a sudden she does.'
We are satisfied after hearing from the respondent that this statement attributed to the Tribunal member refers to when the Tribunal member was in a position to give a decision, not whether she was able to give a decision. We find that the statement attributed to the Tribunal member does not disclose an error of law or a ground for leave to appeal.
For the reasons provided below, we are unable to find that the application for leave on the basis that the decision was against the weight of the evidence has been established as the appellant has not provided a recording or a transcript of either the hearing or the oral reasons delivered at the conclusion of that hearing. We have also decided that the application for leave on the basis that significant new evidence was available that was not reasonably available at the time of the hearing should be refused.
The appeal was lodged on 31 May 2024. We accept that the appeal was lodged within the 28 day time limit set out in the Civil and Administrative Tribunal Rules 2014.
Section 80(2) of the CAT Act states:
'Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.'
As regards the leave of the Appeal Panel, clause 12(1) of Schedule 4 of the CAT Act states:
'An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).'
The appellant does not raise an error on a question of law as a ground of appeal.
In Collins v Urban [2014] NSWCATAP 17 an appeal panel stated at [74 - 78]:
'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].
The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.'
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
"(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an appeal panel stated:
'An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.'
Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for an appellant to disagree with the outcome of a Tribunal decision and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted.
The directions made for the Appeal hearing on 31 July 2024 stated that the appellant was to lodge with the Appeal Panel 'the sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts'
The Appellant has not provided a sound recording of the hearing. He has provided what he has described as Time stamps from the recording of the hearing. The material provided by the appellant is not a typed copy of what was actually stated by the Member in her oral reasons for decision. What the appellant provided was a description in his own words of what was said at the hearing with his own comments/observations on what occurred or what was said.
In our view what the appellant has provided in the 2 pages titled 'Time stamps' from the recording is not a proper typed transcript of the hearing or relevant parts of the hearing and is not a transcript of the Member's reasons for decision.
In his Notice of Appeal the appellant does not identify an error of law. At section 6A and B of the Notice of Appeal the appellant states that he does not seek leave to appeal. Despite that at 6Biii there is an indication that the appellant seeks leave because the decision of the Member was against the weight of evidence.
Where the appellant has not provided a transcript of the hearing which states the reasons for decision given by the Tribunal Member, we are unable to give proper consideration to the appellant's application for leave on the ground that the decision of the Tribunal under appeal was against the weight of evidence. That is because we cannot decide whether the Tribunal erred when we do not know the Tribunal's reasons for the decision.
Despite the appellant stating in his Notice of Appeal that he had no new evidence in connection with the ground for leave to appeal that significant new evidence was available that was not reasonably available at the time of the hearing, he filed a range of documents which he stated at the hearing was relied upon as significant new evidence. The 'new' evidence filed by the appellant was:
1. A statement of fact dated 15 August 2024 by Mr G Tattersall who gave a witness statement for the appellant in the first instance proceedings;
2. Three photographs; and a Grant's Landscapes Pty Ltd proposal to the appellant to remove and re-do the work carried out by the respondent.
Insofar as the appellant seeks to rely on new evidence, the question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with, was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. That decision and the authorities referred to, establish at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing, the test is whether the material the appellant now seeks to rely upon was unavailable because "no person could have reasonably obtained the evidence", Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
This ground for leave to appeal does not allow the introduction of new evidence because at the time of the hearing the appellant was unaware of the need to rely on the evidence, or because the desirability of the new evidence becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
The appellant has not provided a basis for establishing that the new evidence that he now seeks to rely on was unavailable at the hearing because no person could have reasonably obtained the evidence. To the contrary the only indication that we have is that the appellant obtained the new evidence after the hearing had concluded. We infer that his efforts to obtain the evidence arose because of what transpired at the hearing and because the decision was adverse to him.
Consistent with Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown we interpret clause12(1)(c) of Schedule 4 of the NCAT Act to mean that leave to appeal may be granted if the appellant suffered a substantial miscarriage of justice because the new evidence was unavailable at the hearing because no person could have reasonably obtained the evidence.
Support for this construction is to be found in Chapman v McLaughin [2016] NSWCATAP 212 at [37] where an appeal Panel stated:
'… The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.'(Emphasis added)
The interpretation we stated at [29] and the effect of the authority referred to at [30] results in us finding that the appellant is not entitled to rely on the new evidence that came into existence after the hearing had concluded, as described above. If that were not the case, the principle of finality of litigation would seriously be eroded as parties would be free to consider the decision handed down and then to seek out new evidence which would overcome any evidential deficiencies disclosed by the reasons given in support of the decision.
The appellant's application for leave to appeal based on clause12(1)(c) of Schedule 4 of the NCAT Act is refused. The appeal is dismissed.
[2]
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: 19 November 2024