1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd - [2020] NSWCATAP 67 - NSWCATAP 2020 case summary — Zoe

NSWNSWCATAP

1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd

[2020] NSWCATAP 67

NCAT Appeal Panel|2020-04-02|Before: Dr J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2020-04-02

Before

Dr J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Reasons for decision

The appellant, 1950 Investments Pty Ltd t/as Hogan Prestige Garage, is a motor vehicle dealer licensed under the Motor Dealers and Repairers Act 2013 (NSW) (MDR Act). The appellant seeks to appeal a decision of the Tribunal, made in its absence, on 20 December 2019, that it pay the respondent, Wabbits Pty Ltd, the sum of $6,581.35 immediately. The decision related to a claim of the respondent concerning its purchase, in May 2019, from the appellant of a 2010 Mercedes Benz B200 motor vehicle, for $13,300.00.
The appellant's appeal was listed for hearing on 2 April 2020. Prior to the hearing, in response to COVID-19 social distance requirements, the Registrar wrote to the appellant and the respondent to advise that the hearing of the appellant's appeal would proceed by telephone.
At the hearing, on 2 April 2020, there was no appearance by the appellant. However, Mr Frank Kalyk (Mr Kalyk) , a director of the respondent, appeared, by telephone, on behalf of the respondent. After several attempts to make telephone contact with Mr Anthony Hogan (Mr Hogan), who had previously been granted leave, by the Appeal Panel, to appear on behalf of the appellant, we proceeded to hear from Mr Kalyk and reserved our decision.
The issue for determination is whether, in the absence of any appearance by the appellant, the appeal should be determined on its merits or dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For the reasons that follow, we have decided to dismiss the appellant's appeal, under s 55(1)(c) of the NCAT Act, which relevantly provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, … (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

[2]

Background

On 23 September 2019, the respondent lodged an application (consisting of 3 pages) with the Tribunal, in the Consumer and Commercial Division, seeking an order that the appellant pay it the following amounts: 1. $4,518.00 in regard to the Mercedes SatNat that the appellant had promised to provide as part of the sale of the Vehicle; 2. $440.00 in regard to the costs of a warranty inspection undertaken at the request of the respondent on 28 August 2019; 3. $1,504.35 being the costs of repairing the engine and transmission mounts that were found to be defective during the warranty inspection; and 4. $119.00 being the late fee payable by the respondent in lodging the transfer of registration form for the Vehicle, which the appellant had failed to forward to the respondent within the time required.
The total of these amounts was $6,581.35.
We note that in its application to the Tribunal, the respondent said: … [the] Applicant agreed to purchase and the Respondent agreed to sell the Car for the price of $13,300 ('the Agreement"). It was a term of the Agreement, by reason of which the agreed price was increased from $13,000, that the Respondent would, after the purchase of the Car, install in the dashboard screen of the Car a Mercedes Satnav system ('the Satnav"). The Respondent agreed that as the Satnav was not in stock, it would be ordered and when received into stock (expected to be within a few weeks), the Applicant could return the Car for installation of the Satnav. …
On 24 September 2019, the Tribunal sent a Notice of Conciliation and Hearing to the appellant and the respondent. Attached to the Notice sent to the appellant was a copy of the respondent's application. The Notice advised the appellant and the respondent that the matter (i.e. the application) 'has been listed before the Tribunal and you are required to appear.' The Notice went on to advise that: 1. the matter was listed before the Tribunal on 9 October 2019, at 2.15 pm; and 2. 'It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you'.
The appellant and the respondent appeared before the Tribunal on 9 October 2019. On this day, the Tribunal made an order adjourning the hearing to a date to be fixed by the Registrar. The Tribunal also made the following orders: 1. The Tribunal directs that the original application and these orders, together with all future correspondence be sent to the respondent: a. By email to 1950receipts@gmail.com; and b. By post to PO BOX 465 Bexley NSW 2207 Australia (…) 2. … 3. The applicant shall provide to the respondent and the Tribunal, either in person or by post TO THE POSTAL ADDRESS ABOVE, a copy of all documents (…), on which the applicant intends to rely at the hearing by 24 Oct-2019. This is to include all documentary evidence … 4. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (…) on which the respondent intends to rely at the hearing by 07 Nov -2020. 5. The documents provided by each party must be placed in a folder, … 6. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so. 7. …
On 23 October 2019, the Tribunal sent a Notice of Hearing to the appellant and the respondent to advise that that the respondent's application was listed for hearing on Friday 20 December 2019 at 11.15 am. The Notice also reiterated the following: 'It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you'.
At the hearing on 20 December 2019, there was no appearance for the appellant. However, Mr Kalyk, appeared on the respondent's behalf.
In the absence of any appearance by the appellant, the Tribunal proceeded to hear the respondent's application and made the orders set out in paragraph [5] above. However, the Tribunal did not publish its reasons for decision.

[5]

13 February 2020 Call Over

In accordance with the usual practices of the Tribunal, the appellant's appeal first came before the Appeal Panel, at a call over, on 13 February 2020. With the leave of the Appeal Panel, constituted by Principal Member Britton, Mr Hogan appeared, on behalf of the appellant, and Ms J McKenzie appeared on behalf of the respondent.
On this day the Appeal Panel made the following orders: 3. The Appellant is to lodge with the Tribunal and provide to the Respondent by 27 February 2020: (a) Any fresh evidence on which it is intended to seek leave to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts. 4. The respondent is to lodge with the Tribunal and provide to the Appellant by 12 March 2020: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) Any fresh evidence on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts. 5. The Appellant is to lodge with the Tribunal and provide to the Respondent any written submissions in reply by 19 March 2020. 6. The Appeal is listed for HEARING on 2 April 2020 at 10:15am for half a day. 7. The issue of whether the Appeal Panel should: (a) extend the time for filing the Notice of Appeal (b) give leave to appeal on grounds other than a question of law (c) give leave to rely on fresh evidence is to be determined at the hearing of the appeal.
The written Notice of the abovementioned Orders, sent that day to the appellant and the respondent, included the following notation: (2) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make.

[8]

Jurisdiction of the Appeal Panel

The decision of the Tribunal is an internally appealable decision: NCAT Act, ss 32(4) and 80(1).
Section 80(2)(b) of the NCAT Act provides that an internal appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
As the appellant's appeal is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides that the Appeal Panel may only grant leave to appeal if it is satisfied that 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 Appeal Panel considered the meaning of the phrase 'a substantial miscarriage of justice', in Collins v Urban [2014] NSWCATAP 17, at [71], [76] and [79]. In summary, at [79], the Appeal Panel said: [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
The powers of the Appeal Panel in determining an appeal, or an application for leave to appeal, are set out in s 81 of the NCAT Act, which provides as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

[12]

Should the appeal and notice for leave to appeal be dealt with on its merits?

Section 36 of the NCAT Act sets out the guiding principle that is to be applied to the practice and procedure of the Tribunal, including the Appeal Panel. That section relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
We also note that s 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The rules of natural justice are often referred to as the rules of procedural fairness; they provide for a fair trial where a party can put his or her case fairly before the court: Stead v State Government Insurance Commission of Australia [1986] HCA 54; (1986) 161 CLR 141, at [9].
Rule 35 of the NCAT Rules gives the Tribunal, in the Consumer and Commercial Division, the power to proceed to hear matters before it in the absence of a party. That rule provides as follows: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if - (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. (3) If proceedings to which this rule applies are adjourned by the Tribunal in the absence of a party, a registrar is to give notice (or direct that notice be given) of the time and place of the adjourned hearing to the absent party.
Neither the NCAT Act, nor the NCAT Rules, contain a similar provision in regard to proceedings before the Appeal Panel. It may be that s 81(2) of the NCAT Act is sufficiently broad to confer a similar power on appeal from a decision of the Tribunal, in the Consumer and Commercial Division, at first instance, or that the Appeal Panel is otherwise entitled to proceed in the absence of a party if the party has been given a reasonable opportunity to be heard. In the absence of having heard from the parties about this we make no finding in this regard.
Even if such a power were conferred, in our view, in this case, the preferable course is to dismiss the proceedings for failure to appear. The position at common law is that if the defendant appears at the trial and the plaintiff is absent, the defendant is entitled to judgment dismissing the plaintiff's claim. The effect of the judgment is the same as if it were a judgment dismissing the action on the merits: Amour v Bate [1891] 2 QB 223, cited in Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 at [20]. Section 55 of the NCAT Act confers a power on the Tribunal to dismiss an appeal in similar circumstances.

[14]

Decision

In this case, the appellant did not seek a stay of the decision of the Tribunal at first instance. Hence, the decision of the Tribunal at first instance remains enforceable: NCAT Act, s 43(2) and (3) and New South Wales Land and Housing Corporation v Hamilton [2015] NSWCATAP 96.
Nor have the appellant's appeal proceedings been protracted. There has only been one call-over, on 13 February 2020.
Mr Hogan appeared, on behalf of the appellant, at this call-over. Hence, he was aware of the orders made and the date of the hearing. Yet the appellant has failed to provide any explanation as to why it has failed to file and serve its evidence, as ordered, by 27 February 2020. Nor did the appellant respond to the email of the Registry, in which it advised that the hearing would be by telephone.
In our view, in light of the appellant's duty to co-operate with the Tribunal to give effect to the guiding principle in s 36(1) of the NCAT Act, the appellant's failures warrant the dismissal of its appeal and application for leave to appeal for want of prosecution (NCAT Act, s 55(1)(d)), or on the grounds of a failure to appear (NCAT Act, s 55(1)(c)). The former would finally dispose of the appellant's appeal and application for leave to appeal. The latter would also finally dispose of the appellant's appeal and application for leave to appeal, subject to the appellant making an application for re-instatement and persuading the Appeal Panel to make an order for re-instatement.
In our opinion, as the proceedings have not been unduly protracted, no stay order has been sought or made and given the recent rapidly changing COVID 19 social distancing requirements, the appellant should be given the opportunity to make an application for reinstatement in the event there is a reasonable explanation for its failures, in particular its failure to enter an appearance at the 2 April 2020 hearing. This will give the appellant 7 days within which to make an application for re-instatement.
Accordingly, we make the following order: 1. The appeal and application for leave to appeal are dismissed for failure to appear, pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).