Raffie v JIH Building Designs Pty Ltd

1. [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. [2]

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

   1. (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. (2)

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

3. [3]

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

4. [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

1. [5]

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

2. [6]

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

3. [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.

4. [8]

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

5. [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”.

6. [10]

   On the same day, NCAT replied:

7. [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.

8. [12]

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

9. [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”).

10. [14]

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

11. [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:

12. [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:

The amended summons

1. [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.

2. [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. (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. (2)

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

   3. (3)

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

3. [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.

4. [20]

   The appeal grounds read:

Relevant legislation

1. [21]

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

2. [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.

3. [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.

4. [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.

5. [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.

6. [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”.

7. [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.

8. [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.

9. [29]

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

10. [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.

11. [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.

12. [32]

    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.

13. [33]

    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.

14. [34]

    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.

15. [35]

    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.

16. [36]

    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.

17. [37]

    The disputed paragraphs ought to be dismissed.

18. [38]

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

19. [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.

20. [40]

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

Resolution

1. [41]

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

2. [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.

3. [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

1. [44]

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

Costs

1. [45]

   The appropriate order for costs is that costs be reserved.

   1. (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. (2)

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

   3. (3)

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