Raffie v JIH Building Designs Pty Ltd

[2021] NSWSC 1512

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Raffie v JIH Building Designs Pty Ltd [2021] NSWSC 1512

Hearing dates:

19 November 2021

Date of orders:

23 November 2021

Decision date:

23 November 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) Paragraphs 2 (first appearing), 1 (second appearing), 2 (second appearing), 3 (second appearing), 4 (second appearing), 5, 6, and 7 of the amended summons are dismissed as incompetent.

(2) The proceedings are to be stood over before the Registrar at 9.00am 14 December 2021 for direction.

(3) Costs of the defendant’s notice of motion dated 2 July 2021 are reserved.

Catchwords:

CIVIL PROCEDURE – Appeal from decision of NCAT Appeal Panel – Fair Trading Act – Competency of appeal – UCPR 50.16 – No question of law raised – Whether decision of tribunal member at first instance appealable – Affected paragraphs dismissed as incompetent

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 83

Fair Trading Act 1987 (NSW), Part 6A

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 50.16A

Category:

Procedural rulings

Parties:

Abiedah Raffie (Plaintiff)
JIH Building Designs Pty Ltd (Defendant)

Representation:

Counsel:
Mr Isaac (Defendant)

Solicitors:
Willis & Bowring (Defendant)
Self-represented (Plaintiff)

File Number(s):

2021/113433

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter involves a notice of motion seeking to dismiss portions of the plaintiff’s amended summons on the grounds of incompetence.

2. By notice of motion filed 2 July 2021, the defendant relevantly seeks:

1. Pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs 2 (first appearing), 1 (second appearing), 2 (second appearing), 3 (second appearing), 4 (second appearing), 5, 6, and 7 of the amended summons are dismissed as incompetent.

2. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the above paragraphs are dismissed.

3. The defendant does not press paragraph (2) of the notice of motion.

4. The plaintiff is Abiedah Raffie. The defendant is JIH Building Designs Pty Ltd. Ms Raffie was self-represented. The defendant was represented by Mr Isaac. The parties relied upon a court book.

Background

5. The plaintiff commenced proceedings in the NSW Civil & Administrative Tribunal’s (“NCAT”) Consumer and Commercial Division against the defendant.

6. The plaintiff’s claim was a consumer claim pursuant to Part 6A of the Fair Trading Act 1987 (NSW).

7. The dispute was in relation to the provision of design services by the defendant to the plaintiff. It appears that the plaintiff claimed the sum of $59,756.79.

The tribunal member’s decision

8. On 1 October 2020, Member D Ash (“Tribunal Member”) made the following orders:

“The Tribunal orders that the second respondent JIH Building Design Pty Ltd pay to the applicant Abiedah Raffie the sum of $6,780, immediately.”

9. On the date the orders were made, the plaintiff wrote to NCAT asking how the decision could be appealed as she “didn’t believe the decision was correct”.

10. On the same day, NCAT replied:

“Dear Abiedah Raffie,

NCAT orders are final and binding. You may consider visiting our website for information on your rights and obligations.

For more information visit emphasis]

11. On 29 October 2020, (the last day for filing an appeal) the defendant lodged a Notice of Appeal, commencing an internal appeal against the orders of the Tribunal Member by NCAT’s Appeal Panel.

12. On 15 January 2021, the plaintiff lodged a cross appeal. The cross appeal was lodged out of time.

The Appeal Panel’s decision

13. On 1 February 2021, an appeal panel comprising of S. Westgarth, Deputy President, and P. H. Molony, Senior member, heard both the defendant’s appeal and the plaintiff’s cross appeal (“Appeal Panel”).

14. On 17 February 2021, the Appeal Panel made the following orders:

“1. Appeal Upheld

2. The order made on 1 October 2020 is set aside

3. The Appellant [defendant] is to pay the Respondent [plaintiff] the sum of $3700 immediately.

4. The application of the Cross Appellant [plaintiff] to extend time for lodgement of the Cross Appeal is refused.

5. The Cross Appeal is dismissed.”

15. In relation to the cross appeal, the Appeal Panel gave reasons for not extending time for its filing at [16], [17] and [29]. They are as follows:

“[16] At the hearing of the appeal we only considered whether the cross appeal should be refused on the basis that it had been filed out of time, or accepted upon the basis that we should extend time for filing that Notice of Appeal. We indicated to the parties that if we were of the view that time should be extended, then there would need to be further directions and a further hearing concerning the merits of the cross-appeal. In support of her contention that time should be extended the Respondent (i.e. Cross-Appellant) said that she initially thought that the orders were binding and that she had no further redress. She was not able, in our view, to adequately explain why on receipt of the Appellant's Notice of Appeal on or shortly after 29 October 2020 she did not then file a Notice of Appeal. During the hearing she said that she made some enquiries on the Tribunal's website and found the issue too complicated.

[17] A review of the Notice of Cross-Appeal reveals that it includes claims which were not the subject of the proceedings at first instance. For example, it includes claims for the cost of post-hearing enforcement proceedings in the Local Court We have decided not to extend time for the lodgment of the cross appeal and to dismiss it. Our reasons are set out in [29] below

…

[29] We are of the opinion that the cross-appeal should be dismissed on the basis that it has been filed out of time. In coming to this view, we have had regard to the length of the delay ( about 6 weeks) which is excessive having regard to the requirement to lodge an appeal within 28 day from receipt of the Decision: see cl25 of the Civil and Administrative Tribunal Rules 2014 NSW. We have had regard to the reason for the delay, which was largely due to the Respondent not making adequate enquiries as to what she needed to do. A further factor we have taken into account is that the Cross Appeal includes claims which have arisen since the first hearing and do not relate to the merits of the Decision itself. Finally it is not apparent that an injustice will arise by refusing to extend time.”

The plaintiff’s explanation for delay

16. On 19 July 2021, the plaintiff provided this Court with a detailed explanation for her delay in lodging the cross appeal in response to the defendant’s notice of motion. It reads:

“As detailed in my evidence:

As of the day the orders were released on the 1 October [2020]. I attempted to obtain information from NCAT on how to appeal the decision. I was advised that the decision is final and binding.

Jason Harb, being the representative for JIH Building Designs ensured that he inundated me with numerous applications to NCAT and the Local court. JIH was in breach of court orders for the duration of this time.

At no time before the time lapsed for an Appeal did Jason Harb inform me of his intentions to appeal. Instead he remained in breach of orders and kept me responding to all his applications whilst he was preparing an Appeal that was filed the day after the deadline of the 28th of October.

I was only served the notice to appeal on 2 November 2020. This was after he was served with Garnishee orders, Writ for levy of property and email from me informing him that he was in breach of orders.

The Appeal panel was procedurally unfair in their decision. Reasons given for dismissing my cross appeal being that I lodged my cross appeal out of date is not balanced against the evidence and reasons on why it was filed out of date.

NCAT was unfair in allowing JIH Building Designs to breach orders, grant him extensions and allowing his appeal while breaching orders, Yet dismiss my cross appeal.

My Cross appeal was lodged as advised by the appeals office. I was advised to lodge it as the same time as I lodge my reply to an appeal. Which I did.

The Appeals Panel s decision is outweighed by the evidence on my reasons for delayed lodgement.

Appeal panel only dealt with part of Member D Ash's orders.

The Appeal panel allowed Jason Harb to monopolise the time for the hearing, allowing me only a fraction of time to argue my case.

List of Evidence:

1   Email sent to NCAT on the date of orders made by Member D Ash being 1 October 2020 at 12.40 pm, requesting information on how to appeal the decision. NCAT responded that the decision is final and binding.

2   Certified court money order dated 2 October 2020 received from NCAT to enforce the orders made on 1 October 2020

3   6 October I notified Jason Harb that he is in breach of orders and that orders will be enforced. I received no response from Jason Harb

4   On the 23 October 2020, I received the Garnishee Order for debts from the local court. It was served on the same day at 1 04pm to Jason Harb. I received no response or notice of intension to appeal.

5   On the 28 October I was advised by ANZ that the Garnishee order could not be exercised due to insufficient funds.

6   On 28 October Notice of motion Writ for the levy of property was lodged and granted. Orders were sent directly to the Sheriffs office in Wollongong.

7   2 November 2020, I wrote to the Sheriff department to confirm the order received for Writ for levy of property.

8   On the same date, 2 November, I receive from NCAT that an application for a Stay which was lodged on the 29th October 2020, a day after Writ of levy was ordered and served on Jason Harb. Hearing was set for 13 November 2020. Documents received at 4.01 pm. I also received a reply to Appeal form.

9   Reply to Appeal was sent and filed on the 7 November 2020.

10    On 13 November 2020 Application for stay was dismissed Jason Harb writes to me and Sheriff department asking for bank details in the pretense of paying the order. He did not pay and remained in breach of orders.

11    23 November 2020 JIH Building design filed another Stay order application.

12    25 November 2020 JIH Building designs filed another Stay order application. Registrar A Whyte wrote on 25 November. That the applicant (JIH) wishes to agitate for a stay and is to immediately comply with directions on 23 November 2020. To this date JIH still was in breach of orders.

13    On 25 November Jason Harb writes to NCAT seeking a stay order after receiving a copy of an email from the Sheriff dept to NCAT enquiring if there was a stay in place. Jason Harb at no time informed the sheriff department that the stay was dismissed or refused.

14    30 November 2020 Stay is refused.

15    2 December 2020 Stay is refused again.

16    On the 3 December Sheriff department provided me with the amount outstanding as per ordered.

17    On 1 December 2020, Jason Harb makes an application to the local court for instalment orders. I was not served, notified or advised of the application. I was only served with three separate orders that were made. 2 orders were refused and the third order was accepted

18   I wrote to the Registrar advising her of my dispute over orders made

19   On the 3 December as soon as Jason Harb received the instalment order he wrote to NCAT asking for an extension on orders that were made on the 13 November 2020 NCAT granted him the extension

20   After my cross appeal was dismissed, I wrote to NCAT to enquire how I can appeal the decision I was advised to seek legal assistance. I called the office and was told that the only way I can appeal the decision was through Supreme Court.”

The amended summons

17. On 17 March 2021, the plaintiff filed a summons and application seeking leave to appeal the decision of the Appeal Panel. The summons was lodged within the requisite 28 day time frame, however due to a mistake at the Registry the filing date was incorrectly listed. This lead to the plaintiff later being incorrectly instructed that she was required to file an application seeking leave for an extension of time. The plaintiff did not need to, and in fact did not, file such an application.

18. On 21 June 2021, the plaintiff filed an amended summons and application seeking leave to appeal the decision of the Appeal Panel under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). The orders sought by the amended summons are as follows:

1. Leave to appeal from the whole of the decision of order made on 17 February 2021 by the Appeal Panel constituted by S Westgarth, Deputy President, and P H Molony, Senior Member

2. Leave to appeal the whole decision of member D.Ash on 1 October 2020

3. Order for a full refund of all moneys paid to JIH Building designs

19. The appeal grounds argued by the plaintiff in the amended summons are presented in two sections, the first concerning the decision of the Appeal Panel, and the second concerning the decision of the Tribunal Member. The paragraph numbering for each section commences at 1. References in this judgment to the plaintiff’s appeal grounds refer to the paragraphs in the first section as the first appearing, and the paragraphs in the second as the second appearing.

20. The appeal grounds read:

“1. The Appeal Panel failed to show procedural fairness in rejecting my cross appeal.

2. The appeal panel rejected my application based on the fact that it was lodged out of time but accepted JIH Building designs appeal application when he was in breach of orders made by Member D.Ash on the 1st October 2020. Order was for JIH to make payment immediately.

3. The appeal panel failed in showing procedural fairness by not hearing the cause of the delay in lodgement time was not only that I was informed by NCAT that the decision was final and binding but also that JIH continued to make countless applications for Stay, which was rejected twice, applied for instalment payments and informed the Sheriff department of his intention to pay.

4. The appeal panel did not show procedural fairness by ignoring the fact that we were made to believe that JIH Building designs was going to pay therefore had no reason to continue with court applications or lodge an appeal.

…

1. Member D Ash was incorrect in his orders dated 1 October 2020 with his reasons for decisions

2. Reasons for decisions, Facts-,the agreement paragraph 6, Member D Ash States, For his part, the first applicant acknowledged that a number of issues were raised but that he would not and had never in the course of his career given a guarantee that a council would approve a DA I raised the potential issues and I am the applicant, not Jason Harb This conversation never involved Jason Harb stating that he would not guarantee that council would approve the DA

3. Paragraph 23, Member D Ash made an error stating The Tribunal notes that the applicant's case is at odds with her email the day after, to the effect that $2,000 would be payable on approval The email was not sent the following day, I was sent immediately after the meeting Jason Harb acknowledge that he received and read the email Member D ash did not consider that fact that, Jason hard did not refute our discussion in a reply to my email, instead he commenced work accepting the terms that was discussed at the meeting and confirmed in the email dated 6 September 2019. He made an error of when an email was sent to the defendant with confirmation of the fee agreement This was detrimental in my evidence that JIH Building design had agreed to commence as our consultant on the basis that the fee paid is to DA approval

4. When orders was received on 1 October 2020, I requested information on how to appeal the decision as I did not agree with the findings. I was told via email by NCAT the the decision is FINAL and BINDING. We had no option to accept the orders.

5. NCAT failed to consider the antics of Jason Harb. JIH ignored orders and was in constant breach of deadlines, with no consequences. Enforcement orders judgments, garnishee orders and Writ of levy, were all granted by the local court. JIH made several applications for STAY, which was refused, Several applications for instalment payments, which was refused and finally accepted, only to then make an application for appeal. This was Blatant in ensuring that I was made to believe he was finally going to adhere to orders only to hinder any attempts by myself to take action and ensure that I had no time left for an appeal.

6. Our evidence which was substantiated by JIH that the agreement was a fixed price quote, It is not just that the decision by NCAT is that JIH Building Designs need to only refund me the council refund which was issued to JIH Building Designs.

7. NCAT failed to acknowledge that Jason Harb admitted to receiving the confirmation email on the same date as our initial meeting. Email was to confirm discussions that the agreement was for a successful DA Approval. When Jason commenced work after the confirmation email of the terms, He accepted those terms to DA approval.”

Relevant legislation

21. The defendant relies on Uniform Civil Procedure Rules 2005 (NSW) r 50.16A which reads:

“50.16A Objections to competency of appeal

(1) A defendant who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 14 days after service on the defendant of the notice of appeal, apply to the court for an order dismissing the appeal as incompetent.

(2) If the defendant fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent--

(a) the defendant is not entitled to costs of the appeal unless the court otherwise orders, and

(b) the court may order the defendant to pay the plaintiff any costs of the appeal proving useless or unnecessary.”

The defendant’s submissions

Appeals in the NSW Civil & Administrative Tribunal

22. An appeal against an “internally appealable decision” may be made to the Appeal Panel by a party to the proceedings. An “internally appealable decision” is a decision of NCAT over which NCAT has internal appeal jurisdiction.

23. NCAT has internal appeal jurisdiction over any decision made by NCAT in proceedings for a general decision. A “general decision” of NCAT is a decision of NCAT determining a matter over which it has general jurisdiction. NCAT has general jurisdiction over a matter if legislation enables NCAT to make decisions.

24. In these proceedings, the Fair Trading Act 1987 enables NCAT to make decisions. The decision of the Tribunal Member at first instance is a general decision, and an internally appealable decision.

25. Pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013, a party to an internal appeal may, with leave of the Supreme Court, appeal on a question of law to the Supreme Court against the Tribunal’s decision.

26. A reference to the “Tribunal” in s 83 is taken to be a reference to NCAT’s Appeal Panel in circumstances where the appealable decision of NCAT concerned is a decision of the Appeal Panel. The decision of the Appeal Panel in these proceedings is an “appealable decision”.

27. The plaintiff’s appeal must therefore only be on questions of law in relation to the decision of the Appeal Panel, and must seek leave.

Competent grounds of appeal 1, 3 and 4 (first appearing)

28. Appeal grounds 1, 3 and 4 (first appearing) allege the denial of procedural fairness by the Appeal Panel. A denial of natural justice constitutes an error of law. Appeal grounds 1, 3 and 4 (first appearing) allege an error of law and are not incompetent.

29. The defendant submits that the below appeal grounds are incompetent for the following reasons:

Incompetent grounds of appeal

30. Appeal Ground 2 (first appearing) does not agitate a question of law. It does not raise an error said to have been made by the Appeal Panel.

31. Appeal Grounds 1, 2 and 3 (second appearing) seek to appeal the decision of the Tribunal Member which was the decision at first instance. This decision is an internally appealable decision. This decision is only appealable to the Appeal Panel. The plaintiff did seek, by way of a cross appeal, to appeal that decision to the Appeal Panel and the Appeal Panel dismissed the plaintiff’s cross appeal. The plaintiff cannot seek to appeal this decision a second time to this Court.

30. Appeal Ground 4 (second appearing) does not raise a question of law, or an appealable error alleged to have been made by the Appeal Panel.

31. Appeal Ground 5 alleges that NCAT erred by failing to consider “the antics of Jason Harb”. Mr Harb is a director of the defendant. Mr Harb’s “antics” are said to be; making several applications for a stay and for instalment orders, and filing a notice of appeal. None of these matters were relevant mandatory considerations to be taken into account by the Appeal Panel in determining the merits of the appeal.

32. Appeal Ground 6 does not particularise the error that is said to have been made by the Appeal Panel. The Appeal Panel found that at first instance NCAT accepted that the agreement the subject of the dispute was a “fixed-fee” agreement. The Appeal Panel also found that, by the agreement, the defendant reserved the right to change the fee if a variation to the services is requested.

33. Appeal Ground 7 appears to relate to the plaintiff’s contention at first instance that the agreement the subject of the dispute included a term to the effect that payment was conditional upon DA approval being obtained. NCAT at first instance dismissed this portion of the plaintiff’s claim. The “confirmation email” referred to appears at Annexure C of the amended summons. This ground appears to be an attempt to appeal the decision of the Tribunal Member at first instance, which is an internally appealable decision. This decision is only appealable to the Appeal Panel. The plaintiff sought, by way of a cross appeal, to appeal that decision to the Appeal Panel however the plaintiff’s cross appeal was dismissed. The plaintiff cannot seek to appeal the decision of the Tribunal Member a second time to this Court.

34. Insofar as the disputed paragraphs do not raise a question of law, and insofar as they attempt to appeal the decision of the Tribunal Member at first instance, the disputed paragraphs are incompetent.

35. The disputed paragraphs ought to be dismissed.

Orders sought by the amended summons

38. By “Orders Sought” 2, the plaintiff’s amended summons seeks leave to appeal the whole decision of the Tribunal Member.

39. The decision of the Tribunal Member is an internally appealable decision; i.e. it is only appealable to the Appeal Panel. The plaintiff did seek, by way of a cross appeal, to appeal that decision to the Appeal Panel however that cross appeal was dismissed.

40. It is submitted that the plaintiff cannot appeal the decision of the Tribunal Member to this Court.

Resolution

41. The paragraphs (1), (3) and (4) (first appearing) raise the denial of procedural fairness, and they are not incompetent.

42. Ground (2) (first appearing), and grounds (4), (5) and (7) (second appearing) are not questions of law and should be dismissed. They should however be treated as submissions in relation to the plaintiff’s explanation of delay in filing her cross appeal before the Appeal Panel.

43. The balance of the appeal grounds in the amended summons do not raise questions of law. The decisions involve modest sums of money. However if the Appeal Panel denied procedural fairness in not granting an extension of time for the plaintiff to file her cross appeal, it may be that the matter is remitted to the Appeal Panel for redetermination.

Result

44. The result is that I make order (1) of the defendant’s notice of motion filed 2 July 2021.

Costs

45. The appropriate order for costs is that costs be reserved.

The Court orders:

1. Paragraphs 2 (first appearing), 1 (second appearing), 2 (second appearing), 3 (second appearing), 4 (second appearing), 5, 6, and 7 of the amended summons are dismissed as incompetent.

2. The proceedings are to be stood over before the Registrar at 9.00am 14 December 2021 for direction.

3. Costs of the defendant’s notice of motion dated 2 July 2021 are reserved.

**********

Amendments

23 November 2021 - Order (2) dates amended.

Decision last updated: 23 November 2021