Camden City Cars Pty Ltd v Fletcher

The Tribunal proceedings up to 13 April 2021

1. Ms Fletcher commenced her claim in the Tribunal on 2 November 2020. Her application set out an account of events which the Tribunal relied upon in arriving at its decision on 13 April 2021.
2. Various details concerning the appellant were set out in Ms Fletcher's application, including a daytime telephone number for the appellant. This telephone number was the mobile number set out in the sales invoice for the car.
3. The parties were given written notice of a first telephone hearing to be held on 7 January 2021 (by this notice the appellant was also provided with a copy of Ms Fletcher's application).
4. There was no appearance by the appellant at the hearing on 7 January 2021. The appearance sheet records that the Tribunal tried twice to contact the appellant and that the phone rang out. On that occasion the Tribunal proceeded to make an order for payment as sought by Ms Fletcher.
5. The appellant applied to the Tribunal immediately to set aside that order pursuant to clause 9 of the Civil and Administrative Tribunal Regulation (NSW) 2013 on the basis that it was not present at the hearing on 7 January 2021 and that as a result its case was not adequately put to the Tribunal.
6. On 5 February 2021 the Tribunal set aside the order made on 7 January 2021. In arriving at its set aside decision, the Tribunal noted that the explanation for the appellant's absence at the hearing was that Mr El Skaf had left his mobile phone at home. The Tribunal made directions for the provision by the parties of any further evidence and that the matter was listed for final hearing for 90 minutes after 5 March 2021. Under these directions the appellant was to provide any further evidence in reply by 5 March 2021.
7. By a Notice of Conciliation and Hearing, dated 5 February 2021, the parties were informed of a telephone hearing to take place on 13 April 2021 at 1:15 PM. There is no dispute that this notice was received by the appellant. Mr El Skaf accepts that he knew of the date and time of this hearing, that it would be by telephone and that he needed to be ready to receive a call from the Tribunal at the time of the hearing.
8. This notice of a hearing on 13 April 2021 also stated: 3 You must remain available after the time listed above in the event the Tribunal is delayed in calling you. If the Tribunal is unable to contact a party by telephone the Tribunal may proceed to make orders including final orders in the absence of that party.
9. Before the hearing on 13 April 2021 the appellant lodged a written submission on 12 March 2021. The document took no issue with the essential facts outlined above. The relevant contentions made in the document were: 1. The vehicle was roadworthy at the time of sale. 2. The vehicle was purchased with a No Dealer Guarantee, which was why the appellant provided a warranty and roadside assistance under which the vehicle could be repaired after sale with cover up to $1000. 3. In signing the Form 5 the customer acknowledged that the dealer was not required by the Motor Dealers and Repairers Act 2013 to repair or make good any defect which may exist to recur in the vehicle. 4. The appellant offered to use its mechanic because the work would be done a lot cheaper if any repairs needed to be carried out. 5. The appellant always advises the customer to bring the vehicle into the appellant to get any problem rectified but Ms Fletcher did not do this.
10. There was no appearance by the appellant at the hearing on 13 April 2021. The Tribunal's written reasons for decision dated 13 April 2021 state that the appellant was telephoned three times by the Tribunal. The Tribunal proceeded to hear and determine the claim on the merits. The appearance sheet for the hearing states that the Tribunal's order was made at 1:53 PM.

The Tribunal's decision of 13 April 2021

1. The order made by the Tribunal on 13 April 2021 was that the appellant pay Ms Fletcher the sum of $5,450.00 on or before 20 April 2021. It provided written reasons for decision that day. The pertinent reasons were as follows: 1. It gave an account of the sworn evidence given by Mr Fletcher as to the truth of the content of the written material provided to the Tribunal, including the account of events set out in Ms Fletcher's application. 2. It referred to an invoice from Tyrepower dated 27 August 2020 concerning the faults found with the vehicle and that the fuel injectors needed to be replaced. It referred to a subsequent invoice from Tyrepower dated 21 October 2020 concerning a check of the engine for lacking power and a knocking noise requiring the front of the engine to be disassembled and oils, gaskets seals and timing components to be replaced. 3. It set out the contents of the appellant's submission document. 4. It made relevant findings of fact as to the events which had occurred. 5. It noted that the appellant was correct to say that the vehicle did not come with a dealer guarantee under the Motor Dealers and Repairers Act 2013 but pointed out that the sale did come with guarantees under the Australian Consumer Law (ACL) and that these included a guarantee as to acceptable quality under s 54 of that Law. It referred to the features concerning that guarantee contained in s 54 (2) (a) to (e) and in s 54 (3). 6. It concluded that it was satisfied from the applicant's account of events in the documents from Tyrepower that the vehicle was not of acceptable quality. It also concluded that it could see no reason, in the absence of any evidence from the appellant, why the applicant was not entitled to the amount set out in the Tyrepower documents.
2. These written reasons were set out in a Notice of Order sent to the parties, including by email. That document commenced by setting out the terms of the order that was made in a paragraph numbered 1. The reasons then followed in the document.

The appellant's second set aside application

1. On 20 April 2021, the appellant lodged an application to set aside the order made on 13 April 2021 pursuant to clause 9 of Civil and Administrative Tribunal Regulation (NSW) 2013. The application was signed by Mr El Skaf. It was accompanied by a Statutory Declaration by him.
2. The application included an account as to why the appellant was absent from the hearing on 13 April 2021 as follows: I did not receive any phone calls from a representative at NCAT on the 13/4/2021 to be part of the Conciliation and hearing by telephone, it was stated in the letter (Notice of Order) that a NCAT representative attempted to contact me on my mobile on 3 occasions and failed to make contact with me, I was available and ready to defend my case but did not get the opportunity to do this, I had no missed phone calls on my phone, I also contacted NCAT about 1:20 PM to enquire why I had not received a phone call and was advised by a NCAT staff member that they were running behind schedule, I called NCAT again at 1:30 PM only to be advised by a NCAT representative that they attempted to contact me three times, I was not contacted at any time by NCAT, my phone was with me at all times and I contacted NCAT on two occasions following up this matter, I believe I was disadvantaged in this matter due to no fault of my own and believe this matter should be looked at again. No one called me or left any voice messages on my phone.
3. Plainly, the reference in this explanation to the "Notice of Order "was a reference to the Notice of Order document, containing both the order and the written reasons, referred to above.
4. On 10 May 2021, this set aside application was dismissed. The written reasons, which were set out in a Notice of Order, dated 10 May 2021, sent to the parties included: Dissatisfaction with a decision is not a sufficient reason for a set aside application be granted. [The appellant] should seek advice in respect of other options for appealing the decision. Based on the fact the Tribunal read and considered [the appellant's] evidence and properly considered the matters set out in the published decision, there is insufficient evidence to establish any real likelihood that it would be unjust to let the decision stand.

Notice of Appeal - extension of time sought

1. It was not until 15 June 2021 that the appellant lodged an appeal against the 13 April 2021 decision. It did so by a Notice of Appeal, signed by Mr El Skaf, dated 8 June 2021. The date of lodging was over a month since the dismissal of its set aside application. The time limit for lodging such an appeal was 28 days from the when the appellant was notified of the decision or given reasons for the decision (whichever is the later) and over a month had elapsed since the dismissal of its set aside application before the appeal was lodged.
2. An extension of time for lodging the appeal was sought in the Notice of Appeal. In response to the requirement in the Notice for an explanation as to why the application was not lodged within the time limit it was stated: I did not receive any Notice of Order from NCAT advising me I have been directed to pay applicant cost of repairs.
3. The same statement was repeated in the Grounds of Appeal provided with the Notice of Appeal.
4. The Notice of Appeal named Mr Fletcher, along with Mrs Fletcher, as a respondent. This was misconceived because the order made on 13 April 2021 was to pay Mrs Fletcher only.

Notice of Appeal-grounds of appeal

1. In addition to the contention that the appellant was not given the opportunity to present its case and evidence and to participate in the hearing, the other matter referred to in the "Grounds of Appeal" was: 5. [The appellant] offered to refer [the Fletchers] to our preferred motor mechanic who was assigned to look into the mechanical issues alleged by [the Fletchers] and report any mechanical faults for repair to out dealership that this offer was declined by [the Fletchers]. [The appellant] always prefers to be given the opportunity to rectify vehicle repairs if needed. Under the Motor Dealer Act, the dealer has first choice to fix or make good on any repairs if any are required and [the Fletchers] declined our offer for our dealership to look into the matter. We did not get the opportunity to view the vehicle after its purchase and [the Fletchers] refused to cooperate with [the appellant] to give us the opportunity to deal with the repairs if any were required.
2. These grounds of appeal raise questions of law as to whether the appellant was afforded procedural fairness and concerning alleged requirements of the Motor Dealers and Repairers Act 2013. As will be seen below, such contentions as to errors of law are, in our opinion, unmeritorious.
3. The Notice of Appeal also included an application for leave to appeal on the basis that the decision was not fair and equitable and was against the weight of evidence.
4. As to the contention that the decision was not fair and equitable it was, relevantly, stated: I was not given the opportunity to be in attendance at the NCAT hearing on the 13/04/2021 as I did not receive a phone call from a representative at NCAT. It was alleged that I was contacted on 3 occasions, my phone was with me the entire time and it did not ring. I was unable to defend my case. Dismiss the case of [the Fletchers] as [the appellant] did not fail to appear at the NCAT hearing on the 13/04/2021. [The appellant] did not mislead the customer at any time during the purchase of the Mazda CX7. …. [The Fletchers] were given a Form 5 Motor Dealer's Notice for Motor Vehicles, which [the Fletchers] signed on the 11/08/2020 (sic), [they] were advised by the salesman at the time that the Mazda CX7 does not come with a dealer guarantee under the Motor Dealers and Repairers Act 2013, as it was 10 years old and had mileage of 217228km. [They] acknowledged that they understood the terms of the sale of the vehicle has No Warranty with all risk to be assumed by themselves and that our dealership will not be held responsible for any problems or needed repairs after the sale. [They] were also given a complimentary extended warranty for 15 months… and 1 year Road Service assistance… On date of purchase, this service is offered to vehicles which do not come with a dealer warranty and covers repairs up to $1000. The Mazda CX7 also had a current roadworthy certificate… issued 04/07/2020 ensuring it was roadworthy at the time of sale. [They] undertook a detailed prepurchase vehicle inspection on the 11/08/2020 (sic) prior to offering to purchase the Mazda CX7, [they] advised the salesman they were satisfied and accepted the state, condition and functionality of the vehicle prior to purchasing the vehicle. [The appellant] offered to refer [the Fletchers] to our preferred motor mechanic who was assigned to look into the mechanical issues alleged by [the Fletchers] and report any mechanical faults for repair to our dealership but this offer was declined by [the Fletchers]. [The appellant] always prefers to be given the opportunity to rectify vehicle repairs if needed. Under the Motor Dealer Act, the dealer has first choice to fix or make good on any repairs if any are required and [the Fletchers] declined our offer for our dealership to look into the matter. We did not get the opportunity to view the vehicle after its purchase and [the Fletchers] refused to cooperate with [the appellant] to give us the opportunity to deal with the repairs if any were required.
5. These matters were repeated in support of the contention that the decision was against the weight of the evidence.

The limited appeal right

1. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, which this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis 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)
2. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will usually only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84(2)].

Extension of time-consideration

1. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was "notified" of the decision or given reasons for the decision (whichever is the later).
2. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
3. At the hearing of the appeal Mr El Skaf gave sworn evidence about the issue of delay in commencing the appeal. As we have already said, the explanation set out in the Notice of Appeal, signed by him, was that he had not received any notice of an order informing him that he had been directed to pay the cost of repairs. Despite the documentary evidence referred to below, and adverse to his reliability as a witness, he was, initially, quite adamant that this explanation was correct and that he never received any written notice of an order requiring the appellant to pay any money until the Sheriff showed him the order when it was being enforced, shortly before he commenced the appeal.
4. We do not accept this evidence. It is contradicted, first, by the Notice of Appeal itself, signed by him, which stated that notice of the decision was received on 13 April 2021 and, secondly, by the fact and content of the second set aside application, dated 20 April 2014, also signed by him (referred to above).
5. When asked at the hearing about this contradictory material, Mr El Skaf indicated that he may have become aware of the dismissal of his second set aside application later in May 2021 (he also suggested that this set aside application may have been completed by the company's receptionist) and that this was a stressful time for him as a result of the Covid 19 pandemic, which he gave as the reason for delay in the period after the set aside application was dismissed. In the face of the clear, documentary evidence demonstrating that he must have seen or become aware of the terms of the Notice of Order dated 13 April 2021 on or about, or shortly after, that date, these responses from him were unpersuasive.
6. Although not the explanation for delay put forward by Mr El Skaf, his second set aside application explains part of the delay in lodging an appeal but it does not explain all of it.
7. For these reasons, we consider that a substantial part of the delay in commencing the appeal has not been satisfactorily explained.
8. In addition, the appellant's prospects of success on the appeal are so lacking in merit that in combination with the absence of a satisfactory explanation for the full extent of the delay, in our opinion, the required extension of time should be refused. This is so, even though no specific prejudice would be suffered by the respondent should an extension be granted beyond the general prejudice experienced by the potential further delay in the resolution of the dispute.
9. As to this assessment of the prospects of success of the appeal, our reasons now follow.
10. There is no doubt that in making a decision the Tribunal must comply with the requirements of procedural fairness. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act: ZPH v ZPI [2020] NSWCATAP 201; CKG v Public Guardian [2014] NSWCATAP 32; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41. If there had been some mistake by the Tribunal in its attempt to contact the appellant's representative for the telephone hearing on 13 April 2021 then there would have been procedural unfairness to the appellant. However, as explained below, we are not satisfied that this occurred.
11. In sworn oral evidence at the hearing of the appeal Mr El Skaf confirmed what was stated in his grounds of appeal and in the second set aside application about not receiving a call from the Tribunal to participate in the hearing (as set out in paragraph 19 above). He said that the Tribunal must have called the wrong number. We are not prepared to accept his uncorroborated evidence about this. It is inconsistent with what is said in the Tribunal's reasons in conjunction with the fact that the Tribunal's file shows that it had the correct mobile telephone number. There is nothing on the Tribunal's file to support Mr El Skaf's evidence that he telephoned the Tribunal twice and spoke to unnamed persons-first at 1:20 PM and again at 1:30 PM. The appearance sheet for the hearing records that the order was made at 1:53 PM, which is inconsistent with his account as to what he was told in the call at 1:30 PM, namely that the Tribunal had attempted to contact him 3 times but without any suggestion that the person at the Tribunal said they would arrange for him to join the hearing or any evidence that such a step was taken, which is what would be expected to occur if such a call had been made at that time. Also, there is no contemporaneous written communication from Mr El Skaf to the Tribunal complaining about a failure to contact him, which is a step that would be expected if his account was correct. Furthermore, his evidence that we have referred to above about the delay in commencing the appeal causes us to be particularly sceptical about the correctness of his uncorroborated evidence on this subject. The previous occasion on which he failed to participate in the hearing adds to our concern.
12. Accordingly, we do not accept that the appellant did not participate in the hearing on 13 April 2021 through no fault of its own and that this occurred because of some mistake by the Tribunal in attempting to telephone the appellant's representative.
13. In these circumstances, we see no procedural unfairness associated with the Tribunal's decision made on 13 April 2021. It is clear that the appellant was aware of the hearing on that day and that it had a reasonable opportunity to provide evidence and submissions in defence of the claim (of which it was aware) and to participate in the hearing. We see no failure to comply with the requirement that the Tribunal take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38 (5) (c) of the NCAT Act.
14. In any event, we consider that there was no possibility of a more favourable outcome for the appellant even if we are wrong and there was some mistake by the Tribunal in its attempt to telephone the appellant's representative in respect of the hearing on 13 April 2021.
15. Where the procedure adopted by a decision-maker can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome: per Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZ ARH [2015] HCA 40 at [63]; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141.
16. None of the matters put forward by the appellant in answer to the claim before the Tribunal and on appeal were capable of changing the outcome. On appeal, the appellant reiterated the same points as were put before the Tribunal in the written submissions document that the Tribunal considered, along with some additional points.
17. The first point was that the customer had accepted that the vehicle was sold without the benefit of any dealer guarantee under the Motor Dealers and Repairers Act 2013. However, as the Tribunal explained, the relevant guarantees under the ACL were applicable, including the guarantee as to acceptable quality provided by s 54 of the ACL: see s 179 of the Motor Dealers and Repairers Act 2013.
18. Mrs Fletcher could recover reasonably foreseeable loss and damage resulting from a failure to comply with the guarantee pursuant to s 259 (4) of the ACL.
19. The second point was that the vehicle was roadworthy at the time of sale as allegedly demonstrated by the RMS certificate. However, the appellant did not adduce any evidence to the Tribunal, despite the opportunity to do so, nor any evidence on appeal, to contradict the evidence presented by Ms Fletcher as to the serious defects that emerged very shortly after the sale. Neither before the Tribunal, or on appeal, did the appellant take issue with the conclusion of the Tribunal concerning acceptable quality based upon this evidence and we can see no justification for doubting the correctness of that conclusion.
20. The third point was that the appellant did not mislead Mrs Fletcher in respect of the purchase. However, this is no answer to the claim based upon a breach of the guarantee in s 54 of the ACL.
21. The fourth point was that the Fletchers undertook "a detailed pre purchase vehicle inspection" and "advised the salesman they were satisfied and accepted the state, condition and functionality of the vehicle" prior to purchase. In this connection it was also said that the Fletchers acknowledged that they assumed all risk with the purchase and that the appellant had no responsibility for any defects. However, neither before the Tribunal, nor on appeal, did the appellant adduce any evidence to support these assertions or that such an inspection ought reasonably to have revealed that the vehicle was not of acceptable quality: s 54 (7) of the ACL. Furthermore, the acceptable quality guarantee could not be contracted out of: s 64 of the ACL.
22. The fifth point was that the appellant provided Ms Fletcher with the opportunity to have any necessary repair work carried out by their preferred mechanic, which they asserted could be done more cheaply than by others. It was asserted that under the Motor Dealers and Repairers Act 2013 "the dealer has first choice to fix or make good on any repairs if any are required". However, there is no such statutory provision and there was no other statutory requirement that Ms Fletcher accept the appellant's offer. Nor was it reasonable that she do so in mitigation of loss on the uncontested facts that the appellant had failed to adequately address her concerns when they were twice raised with it before the vehicle broke down.
23. Furthermore, neither before the Tribunal, nor an appeal, did the appellant adduce any evidence as to a lower cost for the specific work that was done.
24. Finally, we do not discern any other available ground of defence on the material presented to the Tribunal and on appeal.
25. In oral submissions on appeal, Mr El Skaf said that if he had participated in the hearing on 13 April 2021 he would have told the Tribunal and the other party that he was more than happy to mediate and to come to a compromise. However, we do not regard this particular alleged lost opportunity to reach a settlement as attracting the principles concerning procedural unfairness. In any event, it was open to the appellant to explore the settlement at other times and we do not see how loss of the particular opportunity in question was in any way capable of being seen as procedurally unfair to the appellant. Furthermore, the appellant provided no evidentiary basis for a conclusion that a real possibility existed for it to achieve a settlement at a lower figure than the amount that was ordered.

Outcome

1. We have decided that the application for an extension of time in which to lodge the appeal should be refused.
2. In any event, had we granted such an extension we would have dismissed the appeal on the basis that no error of law or basis for leave to appeal was established because of the same reasons that we have given concerning the appellant's prospects of success on appeal.

Orders

1. For the above reasons, we order: 1. The application for an extension of time in which to lodge the appeal is refused. 2. The appeal is 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: 19 November 2021