Bluey's Ute World Pty Ltd v Dobson

NCAT Appeal Panel|2016-11-23

REASONS FOR DECISION

This is an appeal against an order dated 29 August 2016 by which a Member of the Tribunal refused an application by the appellant to set aside a decision made on 1 August 2016 in the absence of the appellant.
The appellant was represented at the hearing by its director, Mr Peter Munro. The respondent appeared by telephone with the leave of the Appeal Panel.

Background

The material filed by the parties discloses the following background to the appeal: 1. The appellant conducted business supplying and installing accessories for utility vehicles, in particular with reference to this case, aluminium carry racks and security shutters. 2. On or about 26 March 2015 the appellant installed on the respondent's Isuzu ute accessories described on the invoice issued by the appellant as a "roll top" and "ladder racks". 3. The respondent paid the appellant the sum of $3,460.00 for the supply and installation of the accessories. 4. The respondent was not satisfied with the work performed by the appellant and commenced proceedings in the Tribunal (GEN16/06616) seeking a refund of the moneys he had paid to the appellant.

The initial proceedings - GEN 16/06616

On 13 April 2016 orders were made by consent in proceedings GEN16/06616 in the following terms: The Tribunal orders that the respondent BLUEY'S UTE WORLD PTY LTD …is to undertake and complete the following work in a proper and workmanlike manner on or before 18 May 2016. Remove from the applicant's vehicle C***R ("Vehicle") the aluminium trade racks, security roller shutter and rear tray liner; Deliver the vehicle to a licensed panel beater of the respondent's choice for the repair of the rust caused by metal filings left in the vehicle tray after installation of the racks and security shutter, that work to include repair of rust, rust proofing damage and refinish of surface, reinstall the aluminium trade racks, security roller shutters and rear tray liner and adjust to ensure that they fit the vehicle and allow the tailgate to close in accordance with the specifications at the time of purchase of the aluminium trade racks, security roller shutter; Cause the work to be carried out within no more than three (3) working days; Be responsible for the cost of the works carried out by itself and the panel beater; Carry out and cause to be carried out the work on or before 18 May 2016. The applicant will give to the respondent at least three (3) working days' notice by text to Peter Munro to *** of his delivery of the vehicle to the respondent for the works to be carried out.
It appears the respondent's vehicle was delivered to the appellant in or about June 2016 and the appellant carried out repairs.
However the respondent was not satisfied with the repairs performed by the appellant and filed an application pursuant to clause 8 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act") seeking to renew the proceedings on the basis that the consent orders of 13 April 2016 had not been complied with.

The renewal proceedings

The renewed proceedings (GEN16/31187) came before the Tribunal on 1 August 2016. The respondent was in attendance but there was no appearance for the appellant.
The Tribunal Member was satisfied that notice of the hearing had been served upon the appellant (respondent to the application) and that justice required that the matter be dealt with in the absence of the appellant. As authorised by Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules") the Member proceeded to hear the proceedings in the absence of the appellant.
The Member received evidence from the respondent (applicant at the hearing) and made orders that the appellant pay the respondent the sum of $3,460.00 immediately.
The Member's reasons for so ordering were as follows: The hearing proceeded on the uncontested evidence of the applicant who said the rectification work done by the respondent under the consent order dated 13 April 2016 in matter 16/06616 was defective because the trade racks have not been fitted properly and now they leak water into the vehicle. Also the trade racks are now not fit for trade purposes because they are too weak to carry a standard plasterboard load. The respondent had informed the applicant that the trade racks would be fit to carry 140kg but the applicant gave evidence that any weight greater than 80kg the trade racks start to crack and bend. Due to the bending the applicant now cannot open or close the roller door which was also part of the original work. The applicant's evidence was the whole of the roller top and the racks need to be removed and replaced, if he seeks to have a new roller top and racks installed. The applicant's claim is a "consumer claim" as defined by section 79E of the Fair Trading Act NSW 1987 (the Act) and the Tribunal has jurisdiction to determine it and make a refund order under section 79N(h) of the Act. Based on the applicant's uncontested evidence the Tribunal is satisfied that the respondent has failed to comply with the work order dated 13 April 2016 in a proper and workmanlike manner. It follows on a renewal application that the Tribunal may make an order that was available to be made at the original hearing of the first application. The applicant in matter 16/06616 sought a refund of the amount paid for the services of the respondent. I am satisfied that the services invoiced to the applicant in invoice 33242 were not rendered by the respondent with due care and skill, which was a breach of section 60 of the Australian Consumer Law. Under section 74 of the Act if the Tribunal determines a consumer has suffered loss or damage as a result of the breach of a consumer guarantee of the Australian Consumer Law, the Tribunal may award such sum as it thinks fit. As the obligation to provide services with due care and skill is a consumer guarantee, and that guarantee has not been complied with by the respondent, absent any evidence or submission by the respondent I consider a refund of $3460 to be the appropriate award to compensate for the loss suffered. The applicant also sought 3 days' wages to cover costs associated with bringing this claim and time to prepare evidence. Section 60 of the Civil and Administrative Tribunal Act 2013 provides that a party must pay their own costs of bringing a claim, unless there are special circumstances. I determine that there are no such circumstances which would render the general rule inapplicable to this case.

The set aside proceedings (GEN 16/36034)

On 8 August 2016 the appellant filed an application pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) ("the Regulation") seeking to set aside the order of 1 August 2016. The application was signed by the appellant's director, Mr Munro. Mr Munro made a statutory declaration in support of the application by which he affirmed that the information provided in the application was true and correct.
The application stated the reasons why the appellant had not been present at the hearing in the following terms: "I am going through multiple personal traumas and also over busy at work due to 40% of staff resigning. I forgot about hearing."
The appellant described the case that he would have put if he had not been absent from the hearing as follows: "The claim of $3460 for loose ladder racks is completely unreasonable. Josh Dobson may have overloaded the racks."
On 10 August 2016 the Tribunal stayed the orders made on 1 August 2016 and made directions for the filing of submissions concerning the set aside application.
The respondent filed a submission opposing the application. The appellant did not file any further submissions or evidence.
The appellant's application to set aside the decision of 1 August 2016 was considered by the Tribunal "on the papers", that is without a hearing. That course was permitted pursuant to clause 9(8) of the Regulation and section 50(1)(d) of the Act.
On 29 August 2016 the Tribunal dismissed the application and revoked the stay ordered on 10 August 2016. The Tribunal Member who determined the application concluded that the appellant had established that the appellant's absence from the hearing resulted in his case not being adequately put to the Tribunal. However, as the Tribunal Member recognised, satisfaction of the legislative requirements under clause 9(1)(b) of the Regulations is a necessary but not sufficient condition of the exercise of the power to set aside a decision reached in the absence of a party (Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [65]).
Clause 9(1)(b) of the Regulation is in the following terms: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: … (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
Where the requirements of clause 9(1)(b) of the Regulations are satisfied, the Tribunal has a discretion to set the decision aside. The Tribunal Member determined that the decision should not be set aside for reasons which she set out as follows: 16. First, while Mr Munro states in the set aside application that he has been going through "multiple personal traumas", he has provided no information regarding the nature of these "traumas" or how they would impact on him recording and then remembering that a hearing had been listed. Second, Bluey's Ute World is a business. Its director presumably keeps records of business commitments. It is not clear why, in such circumstances, a hearing could be overlooked, even if Mr Munro has been busy. Third, no supporting evidence has been provided to support a conclusion that Mr Munro has medical or other problems that would impact on him remembering to attend a hearing. This is so even though the set aside application form advises applicants "to provide as much information and supporting documentation supporting your application as possible". Fourth, while Bluey's Ute World claims that the problems complained of by Mr Dobson could be related to overloading, he has provided no information or documentation to support a conclusion that this is a possibility, let alone that it is probable. Nor has any information or documentation been provided to support a conclusion that the money order made in favour of Mr Dobson was too high. The lack of information and documentation means that I am not satisfied that the outcome would have been different had Bluey's Ute World attended the hearing. 17. Overall, given the lack of information and documentation supporting a conclusion that there was a good reason Bluey's Ute World did not attend the hearing and the lack of information and documentation supporting a conclusion that the outcome is likely to have been different had Bluey's Ute World been represented at the hearing, I am not satisfied that the discretion to set aside the Tribunal's decision should be exercised in favour of Bluey's Ute World.

Jurisdiction of the Appeal Panel

As the decision not to set aside the decision of 1 April 2016 was an ancillary decision of the Tribunal for the purposes of section 80(2)(b) of the Act (Hammond v Ozzy's Cheapest Cars at [33] to [40]) an appeal may be brought against that decision as of right on a question of law or with the leave of the Appeal Panel on other grounds.
As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 to the Act, leave to appeal may only be granted under s80(2)(b): If the Appeal Panel is satisfied 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).
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."
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in the decision of the Appeal Panel in Collins v Urban 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."

The submissions of the parties

The Notice of Appeal indicates that the appellant seeks leave to appeal on each of the bases set out in clause 12(1) of Schedule 4 to the Act. The appellant asserts that the decision was not fair and equitable, that it was against the weight of evidence and that significant new evidence has arisen (being evidence that was not reasonably available at the time of the original decision).
In respect of the proposition that the decision was not fair and equitable, the appellant set out, in documents attached to its Notice of Appeal, a number of assertions which may be summarised as: 1. The initial issue of which the respondent complained was rust which had developed under the plastic liner in the back of the ute. 2. The rust was the result of iron filings left behind from the drilling of holes to install the roller shutter. 3. The appellant repainted the relevant area in accordance with the consent orders of 13 April 2016. 4. As soon as the ute was returned to the respondent he claimed that the ladder racks were loose. 5. The racks being loose could have been caused by the respondent overloading the racks during the time, over 12 months, since the racks had been installed. 6. That Mr Munro had been confused by the correspondence from the Tribunal and had not understood that the appellant was required to lodge evidence and submissions in support of its set aside application. 7. That Mr Munro had been suffering from "deep depression due to multiple family traumas" and had trouble concentrating at work. 8. That the appellant had not submitted a report from Mr Munro's psychologist because it was not asked to do so. 9. In addition to his depression, the reason Mr Munro missed the hearing on 1 August 2016 was work overload as two key people (out of five) had recently resigned from employment with the appellant. 10. That the invoice for the racks and security shutter which was before the Tribunal both at the initial hearing and on the set aside application disclosed that the price paid for the racks was $1,180, so it was "unreasonable and unfair" that the appellant was ordered to pay $3,460 on the basis that the ladder racks were "flimsy and cannot carry anything". 11. That it is unfair that the respondent has not been ordered to return the racks and security shutter despite the appellant being ordered to make a full refund of the cost.
In respect of the proposition that the decision was against the weight of the evidence, the appellant submitted: "The Tribunal should have looked at the invoice and understood that Joshua Dobson had been using the roller shutter and ladder racks from Bluey's Ute World for 18 months. His first complaint of surface rust has been rectified, and his second complaint of loose, flimsy racks was not due to poor workmanship but his long term use of the racks. Even if we had to replace these used racks with new ones, $3,460 is too much."
In respect of the proposition that significant new evidence is now available that was not reasonably available at the time of the hearing the appellant attached a report dated 7 September 2016 from Mr Joe Alberts, a clinical psychologist. The report confirms that Mr Munro has been diagnosed with depression and states that this has affected his work. The appellant submitted that the report was not available at the time of the hearing because: "It is an embarrassing issue and I did not know it was required."
In reply, the respondent submitted that the appellant had repeatedly sought to delay the proceedings, that he (the respondent) had not overloaded the racks and that he had made known to Mr Munro the purpose for which he intended to use the racks. The respondent also submitted that Mr Munro's personal problems and the appellant's staffing issues did not sufficiently explain how Mr Munro could have failed to attend the hearing on 1 August 2016.
In his written submission the respondent stated that if he was obliged to return the racks and shutter he would need to replace the rear tub of the ute as the existing tub "would be full of drill holes from their incompetent work". However, in the course of the hearing of the appeal the respondent indicated that the racks and shutter could be returned to the appellant.

Consideration

The appeal is brought against the refusal to set aside the order made in the absence of the appellant. The question for the Appeal Panel is whether that decision involved an error of law or alternatively whether the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision not to set aside the initial orders was not fair and equitable or was against the weight of evidence, or because significant new evidence had arisen that was not reasonably available at the time of the decision.

Error of law

The appellant has not identified any error of law in the decision under appeal. The Tribunal Member correctly identified the requirements for a decision to be set aside and exercised her discretion by reference to relevant matters including all the material presented by the parties both in the renewal proceedings and on the set aside application. As we have already noted, the Tribunal Member's discretion under regulation 9(1)(b) was enlivened as she was satisfied the appellant's absence resulted in its case not being adequately put to the Tribunal at the renewal hearing. How that discretion is to be exercised was considered by the Appeal Panel in Hammond v Ozzy's Cheapest Cars. At [80], the Appeal Panel said: "80. In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: (1) Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and (2) Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. "
The appellant did not identify any error in the manner the Tribunal Member exercised her discretion under clause 9(1)(b) of the regulation. However, had the appellant been denied procedural fairness in relation to its application to set aside the initial decision, that would have constituted an error of law (Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]).
We do not consider that the appellant was denied procedural fairness in relation to its application to set aside the decision made in its absence.
The form, completed by Mr Munro, by which the appellant made the application to set aside the earlier decision clearly states: "This application may be determined on the papers, without an oral hearing. Provide as much information and documentation supporting your application as possible. Attach additional papers to the application if needed."
That statement is not confusing or ambiguous. Insofar as Mr Munro suggested he was confused by later communications from the Tribunal, those communications were not put before the Appeal Panel. The Tribunal Member identified in her reasons that "when staying the order made on 1 August 2016, the Tribunal called for submissions." It is apparent from the submissions filed by Mr Munro that the communication calling for submissions explicitly provided a timetable for the appellant to file further material if it wished. Mr Munro's submissions assert that the letter communicating the orders of the Tribunal concerning the filing of submissions was "quite confusing" but Mr Munro states that the letter referred to "orders being stayed and submissions that can be made with different dates with respondents and applicants being mentioned". We are not satisfied that the appellant was denied the opportunity to file material in support of its application. The appropriate time to do so was at the time of lodging the application, but the appellant was clearly given the opportunity to file further material if it wished.

Leave to appeal

We turn to consider whether the appellant has established grounds for the grant of leave to appeal. It is convenient to deal first with the submission that there is fresh evidence that was not reasonably available at the time of the decision under appeal.
We do not consider that the psychologist's report filed by the appellant on the appeal would, even if provided at the time of the application to set aside the decision of 1 August 2016, have constituted "supporting evidence … to support a conclusion that Mr Munro has medical or other problems that would impact upon him remembering to attend a hearing." The report says no more than Mr Munro had been diagnosed with depression and that depression "typically diminishes a person's ability to think or concentrate and this has had an adverse impact on work output."
Moreover the report cannot properly be described as "significant new evidence" or "not reasonably available" at the time of determination of the set aside application.
Mr Munro's explanation of why a report was not provided at that time was that he was not asked to provide a medical report, and he did not know it was required and "it is an embarrassing issue".
There is no evidence before the Appeal Panel to suggest a similar report could not have been obtained in August 2016 if Mr Munro had sought to do so. It cannot be said the report was not reasonably available at that time (see Al-Daouk v Mr Pine t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] to [28]).
The Appeal Panel does not consider that the decision of the Tribunal Member was, on the basis of the material before the Tribunal Member, not fair and equitable or against the weight of the evidence.
The appellant raised in his submissions on the appeal the proposition that it was inappropriate that the respondent receive a full reimbursement of the cost of the racks and shutter, yet not be obliged to return the racks and shutter to the appellant. However, that proposition was not squarely raised by the appellant in any material put before the Tribunal either in the initial proceedings or on the set aside application.
We note that s79N(h) of the Fair Trading Act 1987 (NSW) (FTA), which was referred to by the Tribunal Member in the initial decision, provides that the Tribunal may make an order that requires a respondent to refund all or part of the purchase price of specified goods that are in the possession (or under the control) of the claimant and the claimant to return all or part of those goods to the respondent (whether the property in the goods has passed or not). However, the appellant merely asserted in its application to set aside the original decision that "the claim of $3,460 for loose ladder racks is completely unreasonable" and that the "amount is too high". Those statements were not sufficient to identify the particular issue concerning the orders made on 1 August 2016 upon which the appellant now seeks to rely.
The invoice for the racks and shutter issued by the appellant, which was before the Tribunal on 1 August 2016 and before the Tribunal Member when considering the set aside application, does attribute separate values to the racks and the shutter. The relevant amounts were $1,120 for the racks and $2,150 for the shutter (including GST in each case). The invoice includes a separate fitting fee for each item in the amount of $60 for the racks and $130 for the shutters. That is, the total amount invoiced was $3,460. It was this amount the respondent sought to have refunded to him in his initial application and then his renewal application.
In our view that was not sufficient to establish that the full refund awarded to the respondent was excessive compensation for the defective rack which the appellant had installed.
As the Tribunal Member recorded in the initial decision of 1 August 2016, the racks had started to crack and bend with the result that the respondent could not open or close the roller shutter. On the material before the Tribunal it would not have been self-evidently apparent that the racks and shutter retained any value.
As we have noted, in the renewal proceedings the Tribunal's finding against the appellant was that the "services invoiced to the applicant were not rendered by the respondent with due care and skill". The Tribunal went on to find "a refund of $3460 to be the appropriate award to compensate for the loss suffered".
While this decision (ie the renewal decision) is not the subject of the appellant's appeal we note that the Tribunal's reference to s74 of the Fair Trading Act was in error, because it did not apply to the circumstances before it. As section 74(3) makes clear, that section is concerned with the avoidance of multiplicity of proceedings (see Jenkinson v Chaw [2015] NSWCATAP 127 at [59]-[70]). It is applicable where a "local contravention" (that is a contravention of Part 4 of the FTA - which relates to consumer safety and information requirements) or a "contravention of chapter 2 or 3 of the Australian Consumer Law" arises "in connection with another matter the subject of proceedings in the Tribunal". The consumer guarantees (such as that provided by s60 of the Australian Consumer Law (ACL)) are contained in Division 1 of Part 3-2 of the ACL, which is part of chapter 3 of the ACL. However, by reason of section 15 of the ACL which provides: Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of: … (b) a provision of Division 1 of Part 3-2 (other than section 66(2), a breach of a consumer guarantee is not a "contravention" of chapter 3.
We do not consider that the reference to s 74 of the Fair Trading Act vitiates the renewal decision or the set aside decision. Based on its findings that the services invoiced by the appellant were not rendered with due care and skill, the Tribunal had power to make an order of the kind that it made under s79N(a), or (h) of that Act, which provide: 79N Orders in favour of claimant In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Division, make any one or more of the following orders that it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, … (h) an order that requires a respondent to refund all or part of the purchase price of specified goods that are in the possession (or under the control) of the claimant and the claimant to return all or part of those goods to the respondent (whether the property in the goods has passed or not).
Having regard to the findings the Tribunal made in the renewal decision, it would appear that its order was an order for compensation and not an order for a refund. The Tribunal had power to make such an order under s 79N(a). Even if we are wrong, and the Tribunal intended to make an order for a refund, in these proceedings, the respondent indicated that he has at all times been willing to return the items that had been installed by the appellant. We encourage him to do so.
As we have noted, the renewal decision is not the subject of appeal. What is the subject of appeal is the set aside decision.

Conclusion

For the reasons set out above, we can find no error in the decision of the Tribunal Member to refuse to set aside the renewal decision. Nor can we find that the appellant has suffered a substantial miscarriage of justice warranting an order for leave to appeal. Hence the appropriate orders are that the appellant's application for leave to appeal must be refused and the appeal be dismissed.

Orders 1. Appeal dismissed. 2. Application for leave to appeal refused. 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: 27 February 2017

Australian Consumer Law Civil and Administrative Tribunal Act 2013(NSW)

Civil and Administrative Tribunal Regulation 2013(NSW)

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