eMove Pty Ltd v Naomi Dickinson

The Material Before the Appeal Panel

1. The Appeal Panel had before it the following material: 1. The Notice of Appeal with annexures A-C which set out in more detail the grounds of appeal and submissions; 2. The Reply to Appeal; 3. A document titled "Appeal Documentation" filed by the Appellant on 23 February 2015; 4. A document titled "Appellant's Submissions" handed to the respondent and the Appeal Panel at the hearing; and 5. A folder of material containing the Reply to Appeal and documentary evidence which had been before the Tribunal, tabulated and with an index and a thumb drive containing the sound recording of the hearing.
2. It should be observed that despite a direction made by Principal Member Redfern on 2 February 2015 that the appellant file and serve any documentary evidence in support of the appeal, including a sound recording of the hearing, it did not do so. In fact, at the hearing, most of the material referred to by the appellant, was contained in the folder of material prepared by the respondent. We point this as that the appellant had every opportunity to place before the Appeal Panel any material, including documentary material, its usual terms and conditions and the like, it wished to rely upon. It did not do so.

The Hearing of the Appeal

1. At the hearing of the appeal, a Mr Gardiner, solicitor, from Teddington Legal sought leave to appear for the appellant. No notice of this application had been provided to the respondent. She objected to leave being granted. She said she felt it would be unfair to her for the appellant to have a lawyer. She felt she would not be able to properly represent herself against a lawyer and would have difficulty meeting the submissions on the appeal handed to her by Mr Gardiner at the hearing.
2. On balance, having regard to what appeared to the Appeal Panel to be the issues involved, including questions of law, we granted leave pursuant to s 45(1)(b) of the Civil and Administrative Tribunal Act 2013 for Mr Gardiner to appear.

The findings below

1. The Tribunal found the following matters to be established, cross referenced to the exhibits before it (see [16] of the reasons below): 1. In late December 2013 and early January 2014 respondent received several quotes for the collection and transport of her personal effects and furniture from Sydney to Melbourne, including from the appellant; 2. On 23 December 2013, the respondent sought from the appellant a quote for the collection and transport of her personal effects and furniture from Potts Point, Sydney, to Elwood in Melbourne; 3. On 6 January 2014, the appellant offered terms and conditions in writing to the respondent for the quote sought on 23 December 2013 for the total sum of $3,340; 4. On 6 January 2014, the appellant notified the respondent that unless and until a deposit was paid, the quote would remain indicative only, and therefore not binding; 5. On 8 January 2014, the respondent paid the appellant the required deposit and the quote became unconditional with a fixed price contract between the appellant and the respondent coming into existence; 6. Subsequent to the contract, the appellant sought quotes from its panel of movers, whom the Tribunal characterised as sub-contractors of the appellant, to move the respondents goods from Sydney to Melbourne. The Tribunal found no contract between the sub-contractors and the respondent; 7. On 13 January 2014, Master Movers, the sub-contractors retained by the appellant, collected the respondent's goods and transferred them to by stored by Kennards Storage in Sydney; 8. From 13 January 2014 the respondent's goods remained in storage by reason of the insolvency of Master Movers who could not therefore meet Kennard's storage fees. It was only after the appellant came to an arrangement with Kennards that it would pursue Mater Movers for the fees, that the respondent's goods were transported to Melbourne;
2. The Tribunal found that the respondent was in no way responsible for the failure of Master Movers to pay Kennard's fees. It held the appellant to be in breach of its contract with the respondent from 25 June 2014 when it asserted, wrongly, that it was entitled to additional fees from the respondent. The Tribunal found that the appellant's standard internet terms and conditions had not been brought to the attention of the respondent and therefore did not form part of the contract between the appellant and the respondent.
3. The Tribunal rejected the appellant's submissions that the move of the respondent's goods was only to be a local rather than an interstate move and that the respondent changed her mind. It held the respondent had proved her losses as a result of the breach of contract in the sum of $8,170.81.
4. In respect to costs, the Tribunal referred to submissions made by the appellant in Ex 1 section 5 and Exhibit 2 (which was not served on the respondent) as containing a series of propositions …"that expose in equal measure both a florid turn of phrase; and which venture incautiously into the realm of the evidently preposterous". It said that the appellant's contentions that the respondent's claim was an abuse of process, was without merit and "arrant nonsense". It held that the submission by the appellant in Exhibit 2 (which as we have observed was not served on the respondent) that the respondent had perjured herself by giving false evidence as being of … "such a type, clearly intending to hold the [respondent] in terrorem, that it comes perilously close to being a contempt, and certainly is and the Tribunal finds that it is an abuse of process of the Tribunal." The tribunal found those submissions to be "objectively disgraceful". As it found the submissions were an abuse of process, it held that s 60(2) of the Civil and Administrative Tribunal Act 2013 was engaged such as to warrant the award of indemnity costs against the appellant.

The Grounds of Appeal

1. Annexure A to the Notice of Appeal set out 2 grounds of appeal, each with several aspects. There are two grounds of appeal with separate sub-grounds within them. The First ground, paraphrased, is that the Tribunal made an error of law : 1. In construing the relationship between the appellant and respondent as being contractual and the relationship between the appellant and Master Movers as one of sub-contract; 2. In finding that the respondent was entitled to damages under s 236 of the Australian Consumer Law; 3. In finding that the respondent's claim was a consumer claim under s 3A of the Consumer Claims Act and that she was entitled to damages under s 8(1) of that Act; and 4. In finding that the appellant had breached its agreement with the respondent as there was no agreement
2. The second set of grounds of appeal seek leave to appeal by reference to cl 12(1) to Schedule 4 of the Civil and Administrative Tribunal Act 2103. They allege that the appellant has suffered a substantial miscarriage of justice because the decision of the Tribunal: 1. Was not fair and equitable; and 2. Was against the weight of the evidence.
3. There were various particulars provided of the second ground. Essentially, they repeat the assertion that there was no contract between the appellant and the respondent.
4. The grounds of appeal were summarised, sometimes inaccurately and repetitiously in the written submissions prepared by Mr Gardiner, solicitor for the appellant and provided to the Appeal Panel at the hearing. It is not necessary to repeat that summary here.

The Reply to Appeal

1. The reply to the appeal was extensive. As noted above, the respondent provided a folder of material, properly indexed and tabulated, of material on which she wished to rely in opposition to the appeal. Careful reference, by time, was made to the parts of the sound recording of the hearing that the respondent wished to rely on. In essence, and without meaning to do injustice to the amount of work undertaken by the respondent to answer the appellant's contentions, in essence, the respondent opposed the relief sought on the bases that: 1. There was no error in the Tribunal's findings that a contract existed between her and the appellant; 2. There was no miscarriage of justice in that the findings of the Tribunal were supported by the evidence before it; 3. The orders of the Tribunal with respect to costs were justified as the submissions that she had engaged in fraud and perjury ought never have been made and the appellant had the opportunity to withdraw them; and 4. In so far as the appellant seeks to assert that it requires leave to appeal and such leave should be granted because it suffered a substantial miscarriage of justice, there is no basis for that submission as the evidence supported the findings of the Tribunal.

Is leave to Appeal Required?

1. In our opinion, leave to appeal on the first ground is not required. That is because the question of whether on the facts found, as a matter of law a contract exists between the parties, is a question of law. The issue is analogous to whether the facts found, there is sufficient evidence to leave a matter to the jury (or a judge acting alone) in support of a cause of action. This is a question of law: Gurnett v Macquarie Stevedoring Co Pty Ltd (1956) 95 CLR 99 at 113.
2. In respect to the issue of costs, as it concerns the exercise of a discretion by the Tribunal, leave is required but we would grant leave. There is a real risk that the appellant has suffered a substantial miscarriage of justice so as to warrant leave: see clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 and the discussion as to when leave to appeal ought be granted in Collins v Urban [2014] NSWCATAP 17 at [65] - [79]. In our opinion, for the reasons explained below, the Tribunal's decision was so clearly unjust or unreasonable that we would set aside the decision and exercise the discretion ourselves: House v The King (1936) 55 CLR 499 at 504-505.

The Substantive Issues

1. The substantive issue in the appeal, namely whether Tribunal erred in finding that there was a contract between the appellant and the respondent, can be dealt with very shortly.
2. In our opinion, on the factual findings made by the Tribunal, there was no error in this finding. The evidence before the Tribunal was that there had been email correspondence between the appellant and the respondent with respect to the quote for moving her goods from Sydney to Melbourne, with interim storage in Sydney by Kennards. Further, as the Tribunal found, the evidence supported a finding that the respondent accepted the appellant's quote and paid the deposit and the balance of the price to the appellant. There was simply no evidence of any other party negotiating or entering into a contract with the respondent.
3. Whether or not parties intended to create legal relations requires an objective assessment of the state of affairs between the parties as distinct from the identification of any subjective reservation or intention: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25]; Ashton v Pratt [2015] NSWCA 12 at [49].
4. We have referred above to the submissions made on several occasions by the solicitor for the appellant that is was the "usual" practice of the appellant being to obtain details of the move required by the client and then obtain suitable quotes from removalists and that payment would not be made to the appellant but to the removalist. In those circumstances, it was submitted, the appellant played the role of the broker for the removalist eventually contracted to do the move and had no contractual relationship with the customer. However, the inescapable facts in this case are that there was no evidence of any negotiations or discussions as to the removal of the respondent's goods between any other parties other than the appellant and the respondent. The evidence establishes, as the Tribunal found, that the respondent paid the appellant for the storage and removal of her goods. Objectively viewed, that evidence established that there was an intention to create legal relations with the respondent in this case.
5. When asked to indicate what document or documents, or other evidence, supported the appellant's submission that there was a contract between the respondent and another party, the solicitor for the appellant was unable to point to anything. That is because there was no such evidence before the Tribunal.
6. Further, there is no evidence that the terms and conditions from the appellant's internet site, which include a statement that no contract was entered into between the appellant and the client, were ever brought to the respondent's attention. In any event, even if these terms and conditions were brought to the attention of the respondent, that would not necessarily be determinative of whether a contract existed. That would depend on an objective assessment of the state of affairs that existed at the time of the alleged contract.
7. As to the terms of the contract, and in part in support of its submissions that no contract existed, the appellant submitted that there was uncertainty as to whether this was an interstate move, or a local move. It submitted that the respondent continually changed her mind. We reject that submission. It was clear from the material before the Tribunal (see for example the email exchange between the parties from 6 January to 8 January 2014 headed "Confirmation of Interstate Quote" at pp 70-79 of Tab E of the folder of materials provided by the respondent) that the respondent always intended to have her goods stored and moved interstate..
8. Whilst there was some initial discussion about whether there would be an interstate move, it was clear when the contract was finalised on 8 January 2014, that the move involved storage for a period, which was included in the amount paid to the appellant by the respondent as part of the consideration. Indeed, the storage period was extended by the respondent and an extra amount paid by her to the appellant for this extra period of storage (see p 44 of tab 5 and p 70 of tab E of the material in support of the reply to the appeal).
9. In the circumstances, we see no error in the Tribunal's finding that on the material before it, there was a contract entered into between the appellant and the respondent. We would dismiss that part of the appeal which seeks to challenge that finding.
10. In so far as the Tribunal's findings as to loss, we find no error in its reasoning. The appellant challenged the finding that the respondent had proved her entitlement to rent paid by her when her goods were detained by Kennards when that company exercised its lien over those goods. In our opinion, there is no error in the Tribunal's reasoning. The respondent put before the Tribunal receipts for the rental of a furnished premises pending resolution of that dispute. She had no other alternative, except perhaps to buy new furniture - a matter which no doubt would have sounded in greater damages.
11. In our opinion, the loss incurred by the respondent in renting a premises whilst the dispute with respect to the removal from storage of her possessions and then moving them to Melbourne flowed from the breach of contract by the appellant. The same is true for the other amounts awarded by the Tribunal. They were amounts, so far as money could do so, which put the respondent in the position she would have been had the contract been performed: Robinson v Harman (1848) 1 Ex 850; 154 ER 363.
12. The appellant submitted that an award to the respondent of over $8,000 when all it received was a $200 fee was wrong and excessive. However, once it is accepted that the appellant has failed to demonstrate any error in the Tribunal's finding that a contract existed between it and the respondent, or in respect to the losses suffered by the respondent flowing from the breach of that contract by the appellant, such a submission must be rejected.

The Costs Issue

1. The appellant also appeals from the order of the Tribunal that it pay the costs of the proceedings on the indemnity basis. The Tribunal considered this issue as [42]-[43], [46]-47] and [56]-[57] of the reasons below. The appellant says that the Tribunal's finding that it's submission that the respondent had made a false claim and given false evidence was "objectively disgraceful" thus warranting an costs order, particularly on the indemnity basis, is wrong and should be set aside. It relies on past dealings between it and the respondent and says, in such circumstances, she was knowingly propounding a false case. It also relied on what it says were genuine attempts to resolve the respondent's issues prior to the proceedings. It says the findings of the tribunal constituted a personal attack on the director of the appellant who appeared and presented its defence of the claim made against it.
2. The power of the Tribunal to award costs to a party is conferred by s 60 of the Civil and Administrative Tribunal Act 2013. The starting point is that each party to proceedings in the Tribunal is to pay its or their own costs: s 60(1). If it is to award costs, the Tribunal is required to find that there are special circumstances which warrant the award of costs: s 60(2). By reason of s 60(3) of the Act, the Tribunal is to have regard to certain matters, including whether the conduct of proceedings by a party prejudiced the other party. S 60(4) of the Act allows the Tribunal to determine the basis of costs to be paid (whether they are to be assessed or paid on any other basis).
3. It must be remembered that where a court or a tribunal is conferred with the discretion to award costs, such a discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). It must also be remembered that the fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.
4. The submissions made by the appellant as to the conduct of the case by the respondent, contained in Ex 2 before the tribunal, were rejected by the Tribunal. It found there was no evidence to support them. It found, using very strong language, that they were "arrant nonsense" and were intended to hold the respondent "in terrorem", were perilously close to being a contempt of the Tribunal and were themselves an abuse of process. Exhibit 2 was not served on the respondent but only sent to the Tribunal. Despite this, the Tribunal held (at [47]) that, by those submissions, the appellant unnecessarily disadvantaged the respondent in the course of the proceeding. It found that the conduct of the appellant in making the submissions in exhibit 2 were objectively disgraceful so as to warrant indemnity costs.
5. In our opinion, in this case, the Tribunal erred in finding that the submissions of the appellant were an abuse of process and that an award of indemnity costs ought to have been made. Whilst it may have been correct to reject those submissions by the appellant which alleged that the respondent had given false evidence and her claim was an abuse of process, such a finding itself does not warrant the award of costs, let alone indemnity costs.
6. On listening to that part of the sound recording of the hearing in which there is debate between the Tribunal and the director of the appellant about exhibit 2, several things are apparent. Firstly, as the Tribunal itself recognised in its reasons, there was no sworn evidence given by any party in the proceedings, including by the director of the appellant in respect to the submissions in exhibit 2. It was clear, however, that he genuinely believed in the merit of those submissions. We do not think it can be said that he put those submissions forward believing them to be false (see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542). That is, it does not seem to us apparent in any way that the submissions, even if misguided, were made in any way in terrorem or to intimidate the respondent.
7. Secondly, it was apparent that the Tribunal asked the director (repeatedly) whether he stood by the submissions but did not properly engage with him, or allow him to expand, on the basis of them. It was incumbent on the Tribunal, if it felt that the conduct of the appellant was to the effect as it eventually held, to allow the appellant to fully and properly explain itself. It was apparent from parts of the exchange that the director of the appellant did not fully understand the legal import of the submissions he had made in Exhibit 2.
8. Thirdly, it is not apparent how the filing of the submissions, and the refusal to withdraw them, amounted to an abuse of process of the Tribunal. To so find, the Tribunal would need to be satisfied that the predominant purpose for making them was to obtain some collateral advantage which the law does not allow: Williams v Spautz (1992) 174 CLR 509. We do not think such a finding could be made in this case. In so far as the Tribunal held that they were to support the decision to award indemnity costs, we are of the opinion that the Tribunal's finding is clearly unreasonable and unjust so as to enable us to exercise the discretion afresh.
9. As in this case, the Tribunal is often confronted with litigants in person, or corporations represented by directors. The Tribunal must in these cases ensure that it makes appropriate allowances for the fact that submissions made by such parties may not have been expressed in the same way, or may have been expressed more felicitously, if they were represented by legal practitioners. There are authorities which indicate that courts are entitled to regard as a relevant factor in determining the scope of a costs order, the fact that a party is unrepresented. Generally, courts are more reluctant to order indemnity costs against a litigant in person as litigants in person can suffer the limitations arising from a lack of knowledge of the law, familiarity of court practices and the risk of a lack of objectivity (see the discussion in Dal Pont: The Law of Costs, 3rd Ed., at 16.50 pp 548-549). A recent decision of the Appeal Panel noted the difference of approach that may be necessary where a litigant in person, rather than a lawyer appears before it and makes submissions which otherwise perhaps would not have been made: Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83 at [36]-[41]. We agree with that approach.
10. Of course, in an appropriate case, the manner of the conduct of a proceeding by a litigant in person, including submissions made by him or her, could amount to special circumstances so as to enliven the Tribunal's discretion to award costs on the indemnity basis. In our opinion, however, having regard to the matters referred to above, in this case the Tribunal appeared to use the costs order in a punitive sense, rather than in a compensatory sense. Whilst indemnity costs may be awarded to indicate disapproval of the conduct of a party, the award of costs on the indemnity basis remains compensatory (Gallagher International Ltd v Tlais Enterprises Ltd [2008] EWHC 2046 at [27]).
11. For those reasons, in our opinion, the Tribunal erred in awarding costs on the indemnity basis. Indeed, having found that the Tribunal erred in finding the appellant's submissions in Exhibit 2 were an abuse of process, and that being the only basis given for justifying the order for costs, we need to consider if special circumstances exist so as to warrant an order for costs in any event. In our opinion they do not.
12. The language and phraseology by the appellant in Exhibit 2 was robust. If the appellant had been represented by a lawyer rather than its director, the usual constraints on making unjustified allegations of fraud would apply. In this case, however, we do not think that the use of such language, or the making of such allegations, of themselves amount to special circumstances so as to warrant the award of costs. There was clearly antagonism between the parties. The appellant, through its director, felt very strongly that the respondent was aware that it was not meant to be the contracting party, rather just a go between or broker for the removalist. He had that view as the appellant and respondent had done business together previously. He also felt that the respondent was behaving unreasonably when he tried to resolve the issues between them before the respondent commenced proceedings. This is the context in which the appellant made allegations in Exhibit 2.
13. Exhibit 2 was not served on the respondent before the hearing. But there is nothing in the material before us which indicates this was done with the intention of causing the respondent any disadvantage or prolonging the hearing. The director of the appellant said he thought that the Tribunal would send the document to the respondent. In these circumstances, the finding by the Tribunal (at [40]) that the failure to serve those submissions on the respondent demonstrated an approach best described as "willing to wound but fearful to strike" was unreasonable. We do not think it can be said that the submissions made by the appellant in Exhibit 2 did disadvantage the respondent at the hearing or cause any prolongation of the hearing.
14. The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
15. Having regard to these principles, in our opinion, the submissions made by the appellant in Exhibit 2 are not enough of themselves to constitute special circumstances so as to warrant an award of costs. That is so even though they may not have been supported by the evidence. Further, there are no other circumstances which have been identified which may constitute "special circumstances". We do not think there are any. As we have observed, the Tribunal deals with litigants in person, or companies represented by directors on a daily basis. Often times, the parties may make submissions which are forcefully expressed and may not be made out on the evidence. Without more, however, in our opinion this would not necessarily be enough to amount to special circumstances. For present purposes, we find that it is not enough in this case.
16. Finally, although we have decided that there should be no order as to costs, in deference to the submissions of the respondent, and the time she took in compiling material dealing with the costs issue, we also note that costs for the purposes of s 60(5) of the Act cannot include costs to compensate a litigant who is not a lawyer for time spent in preparing and conducting the appeal: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107]-[108] citing Cachia v Hanes (1994) 179 CLR 403 at 405.
17. In this case, the respondent prepared and conducted the proceedings and appeal herself. She is not a lawyer. The respondent notes she has spent 40 hours preparing for and attending hearings for the proceedings and appeal, however, as we note above, by reason of the authorities referred to above, even if an order for costs was appropriate, any costs awarded could not have included compensation for that time.
18. As to the costs of the appeal, each party has had some success. The appellant has had a measure of success in respect to the costs issue and the respondent has been successful in the appeal itself. In the circumstances, we do not think this is a case where special circumstances exist so as to warrant the award of costs to either party in the appeal.
19. The orders we make are: 1. In so far as it is required, leave to appeal is granted. 2. The appeal against the order of the Tribunal that the appellant pay the respondent's costs of the proceedings below on the indemnity basis is allowed and that order is set aside. 3. The appeal is otherwise dismissed. 4. There be no order as to costs of the proceedings or the appeal with the intent that each party bear its or their own costs of the proceedings and of the appeal. 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

Amendments 22 May 2015 - Error in paragraph 43 corrected. 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: 22 May 2015