First Respondent: In person
File Number(s): AP 16/51968
Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Citation: Not applicable
Date of Decision: 01 November 2016
Before: Senior Member M Tibbey
File Number(s): Gen 16/38452
[2]
Judgment
The appeal is an internal appeal under Section 80(2) of the Civil and Administrative Act 2013 ('the NCAT Act') from a decision of a Senior Member of the Civil and Administrative Tribunal on 1 November 2016.
[3]
Background
The appellant operates, or proposes to operate, a business called 'Love Revolution' selling products including items of apparel. The first respondent provided services to the appellant as web designer in respect of development of a website for the business. The other respondents were involved in the development of the website as sub-contractors to the first respondent. The appellant commenced proceedings in the Tribunal against the respondents relevantly alleging breach of contract and breach of provisions of the Australian Consumer Law 2010 in respect of creation of the appellant's website.
On 3 June 2016, the parties reached an agreement at the Tribunal, and written terms of settlement were signed by the appellant and first respondent. A Member of the Tribunal made orders under Section 59 of the NCAT Act to give effect to the settlement.
Order 1 of the Tribunal on 3 June 2016 was that the respondents "produce (to the appellant) all material produced by the respondent to date". Such work was to be produced to the appellant on or before 10 June 2016.
The appellant subsequently claimed that the work produced was valueless, and renewed proceedings in the Tribunal under Schedule 4 Part 5 cl 8 of the NCAT Act. The appellant asserted that two representations were made to him by the respondent: the first relating to the value of the work performed by the respondent, and the second a statement to the effect that other web designers could be retained to complete the work following the appellant's termination of the contract.
The proceedings were set down for a special fixture hearing on 1 November 2016. The appellant and the respondent appeared at the hearing. The presiding Senior Member dismissed the proceedings, not being satisfied that the appellant had established the grounds required to make the orders sought. The Senior Member published written reasons of 20 paragraphs, in which the Member found that the representations were "probably true".
On 29 November 2016 the appellant lodged a Notice of Appeal. The first respondent filed a Reply to Appeal. None of the other respondents have taken an active part in the appeal, and of the respondents, only the first respondent appeared on 27 February 2017 before the Appeal Panel.
The appellant filed a number of documents in his support of the appeal, but such documents relate to the merits of the initial dispute between the parties and whether the work performed by the first respondent was of any value to the appellant. No transcript of evidence or sound recording of the hearing on 1 November 2016 was filed by the appellant.
[4]
Time of Appeal
The appeal was filed within 28 days from the date on which the decision of 1 November 2016 was made, and accordingly is within the limitation period set out in Regulation 25 (4)(c) of the Civil and Administrative Rules 2014.
[5]
Jurisdiction of the Appeal Panel
Under Section 80(2) of the NCAT Act, an internal appeal may be made (a) as of right on a question of law; or (b) with leave of the Appeal Panel, on any other grounds.
As this matter involves an appeal from the Consumer and Commercial Division of the Tribunal, Schedule 4 Part 5 cl 12 of the NCAT applies. That provision relevantly provides:
"12 Limitation of internal appeals against Division decisions
An Appeal Panel may grant leave under section 80 (2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
the decision of the Tribunal under appeal was fair and equitable, or
the decision of the Tribunal was against the weight of evidence, or
significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with".
The principles applicable to whether leave should be granted under Schedule 4 Part 5 cl 12 of the Civil and Administrative Tribunal Act 2013 are set out in Collins v Urban [2014] NSWCATAP 17 at paragraphs [65]-[79]. Relevantly, the appellant must establish there was a "significant possibility" or a "chance that was fairly open" of a different or more favourable outcome to the appellant by reason of the circumstances in cl 12 (1) (a)-(c). The onus is upon the appellant to explain what his case would have been, and to show that it was fairly arguable.
[6]
Grounds of Appeal
The grounds of appeal set out in the Notice of Appeal do not set out with any clarity what the appellant alleges are errors of law made by the Senior Member, or the reason why a substantial miscarriage of justice had occurred within cl 12 (1) (a)-(c) of the NCAT Act. The oral submissions of the appellant were verbose and circumlocutory, and did not clearly articulate the grounds of appeal. As best we can discern from the written material of the appellant and his oral submissions, the grounds of appeal advanced are:
1. The first respondent mislead the appellant into believing the work he had performed was to the value of $2,400.00 prior to the appellant agreeing to the consent orders made on 3 June 2016.
2. The work produced to the appellant by the first respondent was valueless, as the appellant could not find a web-designer who could use the work performed by the first respondent to complete the web-site, due to compatibility issues.
3. The Senior Member had not considered evidence of the appellant, and there was no basis for accepting the evidence of the first respondent.
We do not discern that inadequacy of reasons is a ground of appeal advanced by the appellant.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified at paragraph [13] the following as questions of law:
(1) Whether there has been a failure to provide proper reasons
(2) Whether the Tribunal identified the wrong issue or asked the wrong question;
(3) Whether a wrong principle of law had been applied;
(4) Whether there was a failure to afford procedural fairness;
(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;
(6) Whether the Tribunal took into account an irrelevant consideration;
(7) Whether there was no evidence to support a finding of fact; and
(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In respect of a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between errors of law and errors of fact, it is appropriate for the Appeal Panel to consider the grounds of appeal generally to identify what are the grounds of appeal (Prendergast at [12]).
[7]
Has the Appellant Established an Error of Law?
An appeal is not an opportunity for the losing party to run its case again. The appellant must establish an error of law, or that leave to appeal should be granted because a substantial miscarriage of justice has occurred on the grounds set out in cl 12 (1) (a)-(c) of the NCAT Act. (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).
The reasons of the Senior Member dated 1 November 2016 clearly identify why the Senior Member was not satisfied the appellant had proved that the orders of 3 June 2016 had not been complied with by the respondent, which is the basis upon which a party can renew proceedings under Schedule 4 cl 8 of the NCAT Act. The decision of the Senior Member clearly sets out the evidence of the parties; the legal principles that have been applied; and articulates why the proceedings were dismissed.
The written and oral submission of the appellant merely constitute a repetition of the arguments put forward before the Senior Member on the merits of the dispute, and do not disclose any error of law.
[8]
Has the Appellant Established a Substantial Miscarriage of Justice?
Nothing in the submissions of the appellant, or the documents filed in respect of the appeal, satisfy us that a substantial miscarriage of justice has occurred within the meaning of cl 12(1)(a)-(c) of the NCAT Act. The subjective belief of the appellant that he should have been successful in the proceedings before the Senior Member, and wishes to re-agitate the issues determined by the Senior Member, does not establish that a substantial miscarriage of justice has occurred.
[9]
Conclusion
We are not satisfied that an error of law has occurred, or that leave to appeal should be granted. Accordingly, leave is refused and the appeal is dismissed.
[10]
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
[11]
Amendments
31 March 2017 - .
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Decision last updated: 31 March 2017