Yi v The Apartment Service (Australia) Pty Ltd

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. As set out in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]):

There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: at .

Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion to grant leave which will generally only be exercised in the following circumstances: see Collins v Urban [2014] NSWCATAP 17 at [84(2)]:

1. An appellant has to demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: see Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]. Nor does an appeal provide a losing party with the opportunity to run its case again: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. The appellants sought to provide additional material, fresh evidence, in the appeal, being the full terms and conditions of Airbnb and a statement of Ms Heather Yi.
2. A party seeking to rely on fresh evidence in an appeal may only do so with the leave of the Appeal Panel: see QP v RP [2014] NSWCATAP 59 at [34]- [37].
3. The principles relevant to a grant of leave to rely on fresh evidence in internal appeals were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]:

There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]...

1. Apart from ground (7) these grounds arguably raise questions of law. In respect of ground (7), in Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. Similarly, in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] the Appeal Panel noted that where an appellant is not legally represented, 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.
2. Applying the guiding principle in s 36 of the NCAT Act, it is appropriate for an Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance. Where an appellant is not legally represented "it may be appropriate to adopt a more generous or benevolent approach" in assessing whether the grounds of appeal identify a question of law or a basis for leave to appeal: see Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33] discussed with approval in Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66].
3. The matters raised by the appellants under ground (7), however, are amorphous and amount to no more than musings on whether certain matters could amount to errors. In these circumstances we cannot discern that this ground raises any other question of law or a basis upon which leave to appeal could be granted.

1. The appellants did not tender a complete transcript of the Tribunal hearing. The circumstances of the adjournment can therefore only be determined from the Tribunal's reasons for decision.
2. The Tribunal is required to afford both parties procedural fairness: s 38(2) of the NCAT Act. The Tribunal is also to take such measures as are reasonably practicable 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 NCAT Act. How the requirement for fairness is satisfied will depend on the circumstances of the particular case. The Tribunal is required to consider whether the parties have been given the opportunity to provide all relevant material to enable it to determine all of the relevant facts in issue.
3. The factors relevant to an appeal in relation to an adjournment application were considered in Armee v Brealey [2017] NSWCATAP 141 at [121]:

The Tribunal has the power to adjourn proceedings under s 51 of the NCAT Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). 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: see 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].

....

The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] NSWStRp 44; [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.

1. If the Tribunal failed to engage with a clearly articulated argument or case put to it, then the Tribunal may have constructively failed to exercise its jurisdiction, which is an error of law: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24].
2. In Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 the Appeal Panel stated at [170] - [171]:

Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 353).

In D'Amore v Independent Commission Against Corruption [2013] NSWCA 187, Basten JA considered at [230] the obligation of a decision-maker in the context of administrative decision-making to deal with part of an applicant's claim, citing with approval the following passage from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 ... at [46]-[47], in which French, Sackville and Hely JJ explained:

1. The Tribunal made findings on all relevant issues in dispute (in summary see [10] above) and considered matters in the alternative where appropriate. On the material before us we are not satisfied that the Tribunal overlooked or otherwise failed to deal with the arguments raised by the parties that were relevant to the issues in dispute.
2. Further, we are not satisfied the Tribunal made any finding of fact which was not open on the material before the Tribunal, or that there was no logical connection between the material and the inferences or conclusions drawn by the Tribunal, or that the Tribunal's decision lacked "an evident and intelligible justification": see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [75]- [76].
3. This ground of appeal is not made out.

1. The failure to give adequate reasons is an error of law: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110.
2. For the same reasons identified at [60]-[61] above, the Appeal Panel is not satisfied the Tribunal's reasons are either inadequate or lack rationality. Therefore, there is no error of law on this ground.

(2003) 197 ALR 389

(1986) 162 CLR 24

(1990) 170 CLR 321

(2013) 250 CLR 303

(1978) 20 ALR 323