Cohen v Gigliotti

The Tribunal proceedings

1. The appellant's consumer application against the Respondents, lodged on 10 August 2022, contained the following as the reasons for the order which he sought: A mature dragon tree was purchased from Designer Trees P/L for $10,000. Cash was paid on delivery, together with $600 cash for delivery by a crane, both on the agreed verbal understanding that a Tax Invoice and Receipt would be provided, which were not, despite repeated requests. Tree was delivered by a crane and installed under the supervision of Designer Trees representative and a qualified landscape architect (Hillii P/L) Tree failed to thrive, and eventually died. Repeated requests for assistance whilst tree was degrading went ignored. Senior qualified arborist commission to provide a report, concluding tree death was due to a pathogen imported to site (by Designer Trees) Vendor or refuses to supply a replacement tree or adequate compensation.
2. At an initial hearing of the appellant's consumer application on 1 September 2022 (a listing for hearing and conciliation), the following orders were made by consent: 1. By consent, and without admission as to liability, the respondent will provide the applicant with an adult bottle tree with a trunk diameter of approximately 200-300mm and a height of approximately 3 metres. The bottle tree must be of acceptable quality to the applicant and is to be provided to the applicant on or before 30-Nov-2022. 2. The parties agree that the applicant will attend the respondent's premises to select the tree. 3. Should the applicant and respondent not agree on a tree of acceptable quality that is to be provided to the applicant, the applicant has leave to approach the Tribunal to have this matter re-listed on or before 31-Jan-2023.
3. Orders 1 and 2 were not complied with.
4. On 29 November 2022, the day before compliance was due with Order 1, the appellant lodged in the Tribunal a renewal of proceedings application, in which he referred to the proceedings the subject of the orders made on 1 September 2022, which he asked to be renewed, sought an order that he be paid the amount of $10,000, having referred to Order 3 made on 1 September 2022, and stated: Applicant does not agree on a tree of acceptable quality that is to be provided to the applicant. A Bottle Tree is not an acceptable replacement for a Dragon Tree either in quality, anaesthetics or value.
5. At this point, it is relevant to set out the statutory provision concerning renewal proceedings in the Tribunal. Clause 8 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NCAT Act), which concerns proceedings in the Consumer and Commercial Division of the Tribunal, provides: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal - (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if - (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
6. On 20 December 2022, the Tribunal, in the renewal proceedings (now numbered GEN 22/53082), made orders for the conduct of the renewal proceedings, which made provision for the parties to provide each other with all of their written material upon which they intended to rely before the hearing, including both evidentiary material and submissions. As to submissions, it was specified that the submissions were to include submissions as to the meaning of the Tribunal orders made on 1 September 2022 and the reasons the tree died.
7. On appeal, we were not provided with any transcript of what occurred at the hearing of the renewal proceedings, or at the hearing on 1 September 2022. Nevertheless, it is uncontroversial that the appellant presented written evidence, including photographs, witness statements and the McArdle expert report and written submissions. No written material was put forward by the Respondents.
8. As appears from the Tribunal's reasons determining the renewal proceedings, dated 29 March 2023, the appellant made the following written submissions concerning the orders made on 1 September 2022: …. I make the following submissions as to the meaning of the Tribunal Orders made on 1 September 2022 by Member Zammit as requested in the orders by Member Kinsey of 20 December 2022: At the hearing on 1 September 2022, I made clear to Member Zammit that we (my partner and I) were looking for a reasonable resolution in this matter and would follow the cause of action that was outlined in the orders. The orders contain direction that we consider the possibility (as offered by the respondent) of a Bottle Tree (brachyton rupestris) to replace the Dragon Tree (dracaena draco) in question, and that we could proceed to his premises to select a tree should that meet our requirements. The recording of the hearing will reflect that I indicated that I did not know what a Bottle Tree looked like (and in any case my partner was not present to consider this option) and that despite the ability to quickly look up an image on my phone we made no admission as to its suitability. On further research including first-hand appraisal of a number of the species that were being offered at another nursery, we concluded that in no way could this replace the Dragon Tree in question either in terms of quality, statics or value. The key determinant in the orders was that a replacement of our dead tree was of "acceptable quality" to us and given that we by this time determined that a Bottle Tree could under no circumstances be of acceptable quality to us, there was no need to visit the respondent's premises to reconfirm our feelings. The orders clearly reflect this noting "Should the applicant and respondent not agree on a tree of acceptable quality that is to be provided to the applicant, the applicant has leave to approach the Tribunal to have this matter re-listed on or before 31-Jan-2023" and we therefore made the appropriate relisting application clearly stating these facts as per your process and under which the relisting was then granted. [Italics are our emphasis]
9. It is convenient to state, at this point, that we consider the orders made on 1 September 2022 to be clear and uncomplicated and that they do not reasonably allow for the interpretation for which the appellant contends. It is plain that the only tree referred to in the orders is a bottle tree. If the appellant wished to reserve the right to say that a bottle tree was not a suitable tree to be supplied in resolving the dispute then he should not have consented to these orders, or he should have attempted to negotiate different terms under which, for example, he was given a short period to confirm that a bottle tree would be suitable before the orders set out in Orders 1, 2 and 3 became operative.
10. After the making of these orders, at no stage, did the appellant seek to have them set aside, or varied, for example, on the basis of mistake, misrepresentation, duress or change of circumstances.

The Tribunal's decision on the renewal proceedings

1. First, the Tribunal, in its decision the subject of this appeal, decided that the required leave to renew the proceedings had not been given by Order 3 made on 1 September 2022 because that permission to re-list was not applicable in the circumstances which had occurred, namely, where the appellant had decided that a bottle tree was not a suitable tree and, therefore, under no circumstances could such a tree be acceptable.
2. In this regard, the Tribunal stated: In other words, there was no chance for the parties to agree or disagree, as contemplated by orders (1) and (2), the applicant unilaterally changed his mind.
3. Next, the Tribunal considered whether it would now grant the required leave to renew the proceedings. It refused to do so and stated: ….I would not grant that leave because the reason that order (1) was not complied with was because of the conduct of the applicant. It is clear to me that the applicant has simply changed his mind after he agreed to the consent order. I see no reason why should be allowed to revisit an order to which he agreed. I reject the applicant's contention that the orders of 1 September 2022 orders (sic) contained a direction that the applicants consider the possibility of a Bottle Tree to replace the Dragon Tree. The orders do no such thing. The consent orders require the respondent… to provide the applicant with an adult bottle tree of acceptable quality to the applicant, selected by the applicant, on or before 30-Nov-2022. In the circumstances, where the orders were not complied with because of the applicant's unilateral actions, being his change of mind, I refuse to grant leave to the applicant to renew proceedings GEN 22/36475. The application is therefore dismissed.
4. Next, the Tribunal proceeded to consider the merits of the appellant's consumer application on the basis that, contrary to its decision, it ought to have granted leave to renew. It did so by reference to the uncontradicted, written evidentiary material that had been supplied by the appellant before the hearing, including the expert report from Mr McArdle, and to the absence of any written evidentiary material supplied by the Respondents.
5. The Tribunal concluded that it would have dismissed the appellant's claim for $10,600 because it would have found that the appellant had not proved its case on the balance of probabilities.
6. The Tribunal's reasons included: 1. Findings of fact, much as we have outlined above. 2. An analysis of the legal basis of the claim. In this respect, it concluded that there were two possible bases of claim. First, a claim for breach of an implied term of an oral contract for sale that the tree would be fit for purpose. Secondly, a claim for relief under the Australian Consumer Law (NSW) for breach of consumer guarantees that the goods supplied be of acceptable quality and fit for a particular purpose. 3. Reasons it considered that the appellant had not proved that the tree was not fit for purpose, or was not of acceptable quality as supplied. 4. In arriving at this conclusion, the Tribunal referred, specifically, to: 1. The appellant's evidence that this fungus was "presumably" imported from the Respondents' nursery and that, as we have already said, the appellant had said at the hearing that he did not know how the fungus was imported. 2. The fact that the Respondents' position that the death of the tree was caused by poor drainage was not supported by any independent expert evidence and was contradicted by the evidence from both Mr McArdle and the structural landscaper (Mr Kaufmehl), who assisted the appellant with the selection, installation and follow up issues with the tree. 3. On-line sources concerning Fusarium solani. 4. The submission that the Tribunal was asked to infer that Fusarium solani was imported from the Respondents' nursery by reason that the appellant said that no other trees on his property or nearby appear to be afflicted with this fungus, a matter also observed by Mr McArdle.
7. The Tribunal referred to the legal requirement that the appellant prove his case on the balance of probabilities and proceeded to make reference to the absence of any direct evidence that the fungus was imported by the Respondents, the matters mentioned by Mr McArdle that he had not examined (referred to above) concerning the lifting mechanism at installation, the direction in which the tree was planted and the absence of scrutiny of the maintenance program. The Tribunal also referred to other mechanisms by which the fungus could have established itself on the appellant's property.
8. The Tribunal also stated that, in respect of its factual findings, whilst it had no reason to doubt the matters presented about the Respondents' lack of co-operation and general failure to respond to the appellant's requests for assistance, it was not necessary for it to make findings about these matters because they were not relevant to the determination of the appellant's case.

Extension of time application

1. Because the appeal is brought out of time (the appeal was lodged on 16 May 2023, but should have been lodged by 26 April 2023 - hence, it is 20 days late), the appellant seeks the necessary extension of time pursuant to the power we have to grant such an extension under s 41 of the NCAT Act.
2. As to the grant of an extension of time, well-established authority concerning such an application (see Jackson v NSW Land and Housing Corporation 2014 NSWCATAP 22 at [22]) states as follows: 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… (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... 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; (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)…, - 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.
3. The length of the delay was not inconsiderable. The appellant provided an explanation for the delay as follows: In respect of timeliness of Appeal and leave for an extension, as a busy doctor representing himself and not overly familiar with the day-to-day-operations and time-lines of the NCAT, the normal period for appeal expired without my cognisance. I did not have the time prior to this to review the not inconsiderable documentation online regarding NCAT processes and thus lodged an Appeal Application late, for which I am consequently seeking an extension to the time for filing the Notice of Appeal.
4. At the hearing of the appeal, the appellant told us that he works 7 days a week.
5. We do not regard this explanation as a satisfactory explanation for the delay. It is unspecific and many of those who use the Tribunal have very busy lives. It is a short and simple process to identify from an online search of NCAT that the general rule for the deadline in which to lodge the appeal is 28 days from notification of the decision or reasons for decision (whichever is the later). Even at the time when he lodged his appeal, the appellant had not identified that he needed an extension of time (the Notice of Appeal states that he did not need an extension). Under s 36 (3) of the NCAT Act a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle in s 36 (1) to facilitate the "just, quick and cheap" resolution of the real issues in the proceedings. In the interests of the administration of litigation in the Tribunal in accordance with the guiding principle, and in the interests of the other party to the litigation, who is prejudiced, at least in a general way, by prolonging litigation, parties who wish to consider an appeal must ensure that they identify the deadline for doing so.
6. As to the appellant's prospects of success on the appeal, we do not see any merit in the appeal because: 1. The Tribunal's decision to refuse leave to renew is not attended by sufficient doubt to warrant its being reconsidered. 2. No substantial injustice results from a refusal of the required leave to appeal because the Tribunal considered the merits of the appellant's consumer claim, decided it would have dismissed the claim, if it had granted leave to renew, and we would not have granted leave to appeal from a decision on the merits of the consumer claim, had we been dealing with an appeal from such a decision.
7. Expanding upon these points concerning prospects of success, we first recognise that the appellant appeals from what is an interlocutory order, namely a refusal of leave to renew. Even in the case where the interlocutory order, effectively, disposes of the appealing party's case (a factor in favour of the grant of leave to appeal), as is the case here, leave to appeal from such an order, which is required (s 80 (2) (a) of the NCAT Act), should not be granted unless a substantial injustice would result and the decision is attended by sufficient doubt to warrant its being reconsidered: Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173 at [29]- [30]; Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 at [35].
8. In relation to the question whether the Tribunal's decision to refuse leave to renew was attended by sufficient doubt, the appellant made three points: 1. He repeated what he had put to the Tribunal about his interpretation of the orders made on 1 September 2022 (referred to above) and about what he had said to the Tribunal on that occasion. 2. He added that he believed that the Tribunal on 1 September 2022 was quickly trying to "wrap up" the proceedings and provide an order that could be written up on the day without due consideration being given to the underlying "fair trade issues". 3. He submitted that only he could say whether he had changed his mind about resolving the dispute by the supply of a bottle tree under Order 1 of the orders made on 1 September 2022.
9. As to (1), we have already expressed our view about the clear meaning of the orders. If the appellant did say to the Tribunal on 1 September 2022 what he claims to have said, he, nevertheless, consented to the orders that are clear in their terms.
10. In any event, the appellant did not establish what was said, orally, at the hearing on 1 September 2022. No transcript was supplied, despite the terms of Order 2 (d) of the orders made on 26 May 2023 concerning the conduct of the appeal, which required provision of a typed transcript of the relevant parts of the hearing if what happened at the hearing at first instance was being relied upon.
11. At the hearing of the appeal, the first-named respondent took issue with the appellant's statement that at the time of the hearing on 1 September 2022 he did not know what a bottle tree was. In this regard, he referred us to paragraphs 51 and 52 of the witness statement from Mr Kaufmehl, dated 17 August 2022, presented to the Tribunal in support of the appellant's claim. This evidence refers to a conversation or conversations Mr Kaufmehl had with the first-named respondent in June 2022 in which an offer of compensation was made by the first-named respondent to be used towards the purchase of "another variety of tree being either a Bottle tree, Olive tree of (sic) grass tree". Mr Kaufmehl responded that the offer was rejected and that the purchasers wish to have a full refund to put towards the purchase of a mature Dragon Tree from another vendor.
12. Whilst it would be expected that this offer was conveyed to the appellant, this evidence does not establish the knowledge that the first-named respondent contends the appellant had by the time of the hearing on 1 September 2022. Nevertheless, these matters serve to highlight the importance of obtaining the incontrovertible evidence that was available concerning what transpired at the hearing on 1 September 2022, if this was to be put forward as being of some significance.
13. As to (2), the expressed belief about this issue is not relevant to the issues in question.
14. As to (3), the appellant is not correct about this. It was open to the Tribunal to make a finding of fact about the appellant's state of mind. Given the clear terms of the orders made and the explanation provided by the appellant, the inference drawn by the Tribunal (an inference based upon the balance of probabilities) was reasonably open to it. On the material presented to us, it is difficult to see what other explanation was reasonably available.
15. In relation to the question whether substantial injustice results to the appellant, from a refusal of leave to appeal, we consider that we would have refused leave to appeal from a decision on the merits of the consumer claim, as expressed by the Tribunal on the alternative basis that it had granted leave to renew. Accordingly, we consider that no substantial injustice has resulted to the appellant.
16. In this regard, because we can discern no question of law that would have arisen, it is pertinent to recognise that leave to appeal from a decision on the merits by the Consumer and Commercial Division would have been required, pursuant to s 80 (2) (b) of the NCAT Act, to which the conditions for the grant of leave set out in cl 12 of Sch 4 would have been applicable, as well as the well-established principles concerning the exercise of the discretion to grant leave set out in Collins v Urban [2014] NSWCATAP 17 (at [84]), namely, that, ordinarily, it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
17. In his written submissions about the Tribunal's views on the merits (and in his Notice of Appeal concerning the condition in cl 12 of Sch 4 that the decision was not fair and equitable), the appellant submitted: I believe member Titterton has neglected to make the respondent responsible providing fit for service goods as requiring unrealistic evidence in order to prove the applicant's case. Member Titterton found an overwhelming amount of evidence to support the case that the respondent had not acted fairly or under the terms of The Australian Consumer Law. Yet despite this, the onus of proving that an unfit tree had been provided requiring exhaustive and unrealistic proof (in hindsight 2 years later) regarding the manner in which the tree was delivered (by the respondent) and potential damage to its trunk, together with the compass orientation of the tree respect to being exactly the same as in the respondent's premises, noting again that the respondent undertook and was responsible for the crane lift and situation of the tree in our yard. Member Titterton's determination then shifts to the diseased pathogen found in the tree. Yet throughout this, "the fundamental principle" is seemingly ignored: the tree was noted as failing FROM THE FIRST COMMUNICATION WITH THE RESPONDENT. The respondent failed to visit for TWO YEARS, by which time it was too late. His assertion of a drainage issue was dismissed by the member. And the respondent made NO SUBMISSIONS to the NCAT. All the work, all the expense of a specialist report was born by the applicant/appellant and at the conclusion of this there seems no reflection on the respondent to provide fit for service goods: i.e. a tree that was NOT SICK ON ARRIVAL, which then FAILED TO THRIVE and ultimately DIED. So I believe that this is not a reasonable reflection of the purpose of the consumer principles and therefore that leave should be granted to appeal the decision.
18. In his oral submissions at the hearing of the appeal, the appellant emphasised that the issue came down to one of fairness and fair trading and that, put, simply, he had been supplied with a "dud tree that failed to survive" for which the respondent had failed to take responsibility. He submitted that to decide otherwise was to give precedence to "legal minutiae" over fundamental principle.
19. As to these submissions from the appellant, we make the following points: 1. Liability was not to be determined by broad and, potentially, subjective concepts of fairness and fair trading. 2. It is clear from reading the reasons of the Tribunal as a whole that it directed itself to the question whether the tree as supplied was "fit for purpose" (as well as whether it was of "acceptable quality"). 3. Correctly, the Tribunal did not determine liability on the basis of the manner in which the Respondents dealt with communications and complaints from the purchaser about the condition of the tree after it was supplied. 4. As to the exactitude of proof, the Tribunal, correctly, applied the standard of proof according to the balance of probabilities, in circumstances where the appellant confronted the difficulty that the disease in the tree was not diagnosed until about 20 months after supply and where there was a range of potential ways in which this could have occurred, other than being imported with the supply of the tree. Given these matters, it is unsurprising that there was no direct evidence that the disease came with the tree or that the appellant's expert expressed no opinion to the likelihood that this was the case.
20. In view of these matters, if we had been faced with an appeal from a decision on the merits as outlined by the Tribunal, we would have refused leave to appeal on the basis that the appeal raised no question of principle, such decision did not result in any injustice that was reasonably clear, such decision did not contain any plain error of central fact and none of the other discretionary matters concerning the grant of leave to appeal (as outlined above) were established.
21. Furthermore, we should address one final matter. In his Notice of Appeal, the appellant sought leave to appeal on the basis that the outlined, hypothetical, decision on the merits of his claim was against the weight of the evidence (a factor specified in cl 12 of Sch 4 in respect of the grant of leave to appeal).
22. In Collins v Urban (at [77], the Appeal Panel said: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach…
23. From what we have already said, it is apparent that we do not consider that this test concerning a decision against the weight of evidence would have been satisfied had there been an appeal from a decision on the merits of the claim.

Leave to appeal

1. From what we have already said, it is apparent that, if we had granted the required extension of time, we would have refused leave to appeal.

Orders

1. For the above reasons, we order that: 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 July 2023