Andrews v Davis

Nature of the Appeal

1. At the commencement of the hearing of the appeal the Appeal Panel explained to the appellant the bases upon which appeals from decisions of the Consumer and Commercial Division Appeals may be made. These are appeals as of right on any question of law, and appeals with leave of the Appeal Panel on any other grounds: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act).

Error of law

1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally.
2. In our view, there is nothing in Mr Andrews' notice of appeal or submissions which suggests that he has an arguable question of law. Having completed the section of the notice of appeal to describe in detail how the decision was not fair and equitable and against the weight of the evidence, Mr Andrews is indicating, correctly in our view, that he requires the leave of the Appeal Panel for the appeal to proceed.

Appeal with leave

1. Schedule 4, clause 12 of the Act states that the Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence , or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. We note that in Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 be 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."
3. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65] - [79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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.
4. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Appellant's grounds of appeal and submissions

1. The notice of appeal states that the only order challenged on appeal is the order of the Tribunal that Mr Andrews pay the respondent $469.92. At the appeal hearing it was common ground that this amount had been paid to the respondent by Mr Andrews. Nevertheless, Mr Andrews wished to pursue this matter on appeal.
2. A variety of grounds of appeal were raised in the notice of appeal. These included: 1. the Tribunal was unwilling to give sufficient weight to the "consumer-protection" aspects of the proceedings; 2. the Tribunal failed to give enough time to those aspects of the case were described by the respondent as "sharp practice"; 3. the contract was not "physically signed" by both parties; 4. the terms of trade were unfair to the appellant; and 5. the member constituting the Tribunal did not sufficiently read the submissions at the hearing or fully take into account all relevant evidence.
3. In addition, Mr Andrews had a number of concerns in relation to the respondent's terms and conditions of trade. The grounds included, but are not limited to, the following matters: 1. in the circumstances of Mr Andrews, the terms and conditions of trade were not in an accessible form; 2. the terms and conditions of trade generally were onerous and unreasonable; 3. the terms and condition of trade generally gave the respondent an "unfair advantage".
4. Mr Andrews also sought orders that the respondent "be advised" to be "more open" about the terms of trade under which it operated, so that those terms were understood by future clients.
5. We consider it not inaccurate to consider that the principal concern of Mr Andrews at the hearing was about the use of what he described as ":e-contracts". In his written submissions of 23 March 2015 he submits: The following points are submitted to the Tribunal for active consideration in this appeal case: - a.) Suggest a ruling could be made concerning the use of "e-contracts" by [the respondent] for expensive building works, using an insecure computer-based "tick-a-box" system, rather than signatures. b.) Also the legality of attachment to [the respondent's] contracts of an unduly onerous, quite voluminous and unfair [Terms of Trade] via an innocuous and easily overlooked acceptance tick-box, that could be completed by anyone, but even so, is apparently regarded as part of the contract by [the respondent]. c.) The use of computer Pdf link on the [first] page of the e-contract leading to their 6-page [Terms of Trade] cannot be adequately accessed by all consumers due to lack of keyboard/computer skills and equipment. Most older customers also rely on traditional signing as the only mans of acceptance, especially for costly building works - not solely relying on a computer form to do so.

Respondent's Reply to Appeal and submissions

1. In his Reply to Appeal Mr Davis relevantly states that: Terms of condition were not asked for prior to commencement nor were we made aware that the appellant was computer illiterate. There is a link available online for our quoting process. Adobe acrobat is a standard pdf reader that any body can download for free. Client ticked box + accepted quote. [Terms of Trade are] a legal document connected to our quoting system called Quotient to safeguard [the respondent] + also give clarity to our clients that we are a professional business. [The respondent's] claim was valid + accepted + signed by both neighbours. All claims are warranted.
2. These matters were amplified in the respondent's written submissions.

Consideration

1. The role of the Tribunal is to determine disputes between parties. The role of the Appeal Panel of the Tribunal is to hear and determine appeals from prior decisions in certain circumstances: as of right where there is an error of law; in other matters with leave.
2. As noted above, we do not consider that this is an appeal where an error of law is involved. Accordingly, the appellant has no appeal as of right.
3. We are not persuaded that leave to appeal should be granted. As noted above Collins v Urban is authority for the proposition that ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, where 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, a factual error that was unreasonably arrived at and clearly mistaken, or 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.
4. We do not consider that any of these factors have been established by the appellant.
5. We see no error by the Tribunal in either the orders made or the reasoning process in the decision appealed from.
6. In the circumstances the Appeal Panel orders that: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 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: 18 August 2015