J Redfern PSM, Senior MemberD Goldstein, Senior Member
Catchwords
APPEAL – Application for leave - No question of principle –
Advertising of consumer items
Source
Original judgment source is linked above.
Catchwords
APPEAL – Application for leave - No question of principle –Advertising of consumer items
Judgment (18 paragraphs)
[1]
These appeal proceedings arise out of the decision of the Consumer and Commercial Division of the Tribunal given on 25 November 2024 in which the appellant's case was dismissed after a hearing. The Tribunal member provided reasons for the decision.
The appeal was lodged on 5 December 2024; we accept that the appeal was lodged within the 28 day time limit set out in the Civil and Administrative Tribunal Rules2014, dealing with the time for instituting an internal appeal against the decision of the Consumer and Commercial Division of the Tribunal.
These proceedings concerned an advertisement or catalogue run or published by the respondent in which it advertised the sale of kitchenware in the form of stainless steel cookware comprised of a three piece cookware set and a two piece fry pan set.
The appellant claimed that the advertisement was misleading and deceptive in that he was misled into thinking that the price of the three piece stainless steel cookware set was $49.99 rather than $49.99 each or per piece as found by the Tribunal member.
Importantly, the Tribunal member found that the applicant attended the Aldi store at Bankstown on 22 June 2024 and attended the checkout to purchase two sets, each comprising one lot of three saucepans and one lot of two fry pans. At the checkout, the applicant was advised that the lots of saucepans and frying pans were $49.99 each, and not $49.99 for the sauce pans and fry pans together.
The applicant objected to this and completed the purchase under objection, indicating that he expected to receive saucepans and fry pans together in each set for $49.99 for each of the two sets.
Before us, the applicant seems to rely on a contractual arrangement, which was not raised in the Tribunal at first instance. In that regard, one must refer to his application where the applicant claimed misleading and deceptive conduct and unconscionable conduct.
The applicant also raised a new contract before us. This was not raised in his application at first instance where the applicant claimed relief for misleading and deceptive conduct and unconscionable conduct.
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.'
[3]
The appellant in his notice of appeal raises an error of law as a ground of appeal. He also states that the Tribunal decision was not fair and equitable.
"an Appeal Panel may grant leave under s 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 not fair and equitable."
[5]
We will not read out the other grounds in clause 12 of Schedule 4, because the appellant does not rely on them.
In the case of Collins v Urban[2014] NSWCATAP 17, an appeal panel stated at [76]:
[6]
Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a),' which the appellant relies on in this case 'where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a).. not occurred'
[7]
Then, it is stated at paragraphs [77] and [78] as to the particular ground in cl 12(1)(a), which in this case is the not fair and equitable ground, without seeking to be exhaustive in any way, the authorities established that:
[8]
'if there has been a denial of procedural fairness, the decision under appeal can be said to have been not fair and equitable.
'If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable' or because the decision was against the weight of the evidence.'
[9]
There are further discretions involved even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4. The Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 82(b) of the Civil and Administrative Tribunal Act.
In Collins v Urban, the Appeal Panel stated at [84(2)] that:
[10]
'Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
[11]
(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,
[12]
So one can see that this Appeal Panel has a fair degree of discretion in connection with an application for leave to appeal.
In another case, Ryan v BKB Motor Vehicle Repairs[2017] NSWCATAP 39, an Appeal Panel stated:
[13]
"an appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse his permission for him to appeal."
[14]
In that context, it is important to note that the party is bound by the way he brought his case to begin with, and as we have referred to before, in his application the applicant claimed misleading and deceptive conduct and unconscionable conduct.
As we noted earlier, now the appellant seems to rely on a contractual arrangement, which was not raised in the first place and he also talks of a new contract. We are unable to allow the appellant to proceed with matters which are raised for the first time on appeal, and which were never raised before the Tribunal member, and which the respondent never had an opportunity to respond to in the first instance.
So far as error of law is concerned, the appellant states that the Tribunal did not take into account the terms of the Australian Consumer law. Thus, a question of law is raised.
We are not persuaded that the Tribunal made an error of law because it did not set out s18 of the Australian Consumer Law. Nonetheless, the Tribunal member referred to s 18 of the Australian Consumer Law, which states:
[15]
'a person must not in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'
[16]
The Tribunal in its reasons addressed the relevant facts and came to the conclusion that there was no misleading or deceptive aspect to the advertisement raised by the appellant and therefore no damage followed.
We find that the decision made by the Tribunal member was orthodox, because he analysed the facts being primarily the respondent's advertisement, all aspects of it, and found that there was no misleading or deceptive conduct.
We would also add that even if the appellant was misled by the advertisement, he was informed at the checkout counter that his understanding of the situation was incorrect and the respondent's pricing was explained to him.
It was at that point that the appellant had the opportunity to withdraw from the transaction and not to proceed with the purchase. If the appellant was under any confusion caused by the advertisement, that confusion was dispelled at that point in time. If the appellant contends that he suffered loss, we are of the view that he had the opportunity not to sustain that loss, but understanding the position of the respondent, he proceeded with the transaction.
At a directions hearing on 15 January 2025, the appellant was directed that if what happened at the hearing at first instance was being relied upon by him in the appeal, a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing should be lodged with the Appeal registry. That has not been done.
Where the appellant has not provided a transcript of the hearing which states what was said by the Tribunal, when an application for leave to appeal is being made on the ground that the decision was not fair and equitable because of what the Tribunal member said or did at the time, we are unable to consider the application for leave, because we cannot decide whether the Tribunal erred when we do not know what the Tribunal member actually said that caused a decision not to be fair and equitable.
There is also an allegation that the Tribunal member was biased. No details have been provided to make out the claim. We therefore reject the assertion of bias.
For the reasons that we have provided, we reject the appeal that there was an error of law, and in connection with the application for leave, we refuse leave to appeal. The appeal is rejected because there is no error on a question of law and leave has not been granted.
We would also return to the issue of the ultimate discretion that we are referred to before. We refer to the fact that at [84] in Collins v Urban, the Appeal Panel stated that ordinarily it is appropriate to grant leave only in matters that involve issues of principle.
On the facts of this particular case, we see no issue of principle which would justify the grant of leave to appeal.
On the issue of whether there is a question of public importance or matters of administration or policy, which might have general application, we find that those factors do not exist to support the grant of leave to appeal.
In the sense, there might be 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, we find that there is no such injustice; in particular, given the fact that the appellant was disabused of the proposition that he could obtain what he wanted for the price that he thought arose out of the respondent's advertising material.
As regards to whether or not a factual error has been made that it was unreasonably arrived at and clearly mistaken, we find that there is no factual error. Equally we find that the Tribunal has not gone about the fact finding process in such an orthodox 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 the decision to be reviewed.
[17]
(1) Appeal dismissed.
(2) Leave to appeal is refused.
[18]
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.