Vicky and Christopher Eustace decided to get married on 6 September 2014 and have their wedding reception at the respondent's hotel in Wagga Wagga. On 22 November 2013 they paid a deposit of $1,000.00 to secure the venue and catering for their wedding reception. Later, Mr and Mrs Eustace sought to rescind the contract and have the deposit returned. The Tribunal, by decision given on 11 September 2014, held that the rescission of the contract was not justified, and that the respondent was not required to repay the deposit. It is from this decision that an appeal and an application for leave to appeal have been brought. For the reasons set out below, the appeal is dismissed and the application for leave to appeal is refused. Costs orders were sought by both parties, but as neither party has established special circumstances there are no orders as to costs.
[2]
The appeal and the application for leave to appeal
The Civil and Administrative Tribunal Act 2013 (NSW) ('the Act') provides for appeals as of right on a 'question of law': s 80(2)(b) and also permits appeals with leave of the Appeal Panel.
The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. Thus we must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides:
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(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).
Mr and Mrs Eustace filed a Notice of Appeal together with a substantial document setting out the grounds of appeal. During the course of the hearing before the Appeal Panel on 3 March 2015, they gave further details of their grounds of appeal. In determining the appeal, we have considered the documents filed and the oral submissions made at the hearing.
The principles applicable to the granting of leave to appeal were summarised by the Appeal Pane in Collins v Urban [2014] NSWCATAP 17 at [84] as follows:
The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
[3]
New Evidence
There are nine items of additional evidence which Mr and Mrs Eustace seek to tender on the appeal. The main items of 'new evidence' are the statutory declarations of Mr and Mrs Eustace (previously Ms Jobling). At the hearing before the Appeal Panel, Mr and Mrs Eustace both agreed that all of that material would have been available at the time of the hearing below, had they chosen to put it forward. It therefore does not meet the relevant definition of new evidence, but in any event, we would not receive it. The same goes for the other items insofar as they predated the decision to rescind. The documents which post-dated the decision to rescind are of no relevance to that decision or, therefore, to the decision below.
[4]
Decision Against The Weight Of Evidence
A significant portion of this ground was based on the new statutory declarations of Mr and Mrs Eustace, which for the reasons mentioned above, we have declined to receive.
There is then a complaint that the appellants were not permitted to cross-examine the respondent's witnesses. Pressed during the hearing to explain precisely what complaint they had with the particular findings made by the Member below, the Appeal Panel was directed towards paragraph i and paragraph k of the written reasons.
Paragraph i of the reasons states as follows.
The second-named applicant said that prior to 5 December, the applicants had "had a few meals there (elsewhere said to have been two meals) and were happy", so what they described as their dining experience (and in that regard, their evidence was scanty), was not necessarily typical. When told of the applicants' concerns, the respondent was able to offer certain reassurances regarding the meal and service.
Mrs Berrigan, who represented the respondent at the Tribunal hearing, gave oral evidence and was cross-examined. The criticised paragraph clearly involves findings about the evidence of the applicants and also a finding about the evidence of Mrs Berrigan, who, as just noted, was cross-examined. Therefore, any complaint about the inability to cross-examine other persons who provided statutory declarations for the use of the respondent cannot be used as a basis to criticise this finding.
Paragraph k said this:
While the issue of the applicants having a 'taste test' was confused initially, it is clear that this was offered. On any view, the applicants' request for a guarantee regarding the meals to be served at the function was practically incapable of being given or honoured. As was said by Ms Berrigan, the venue and events manager: 'a meal cooked for sixty or seventy will not match one cooked for two'. Such a guarantee was outside the terms of the contract.
The applicants contend that the findings of fact in this paragraph were based on the evidence of Cindee Mallise and her evidence was unable to be the subject of cross-examination by them. However, they have not established that this witness's evidence was relevant in any way to these findings. To the contrary, our reading of the paragraph is that the applicants' evidence was found to be unconvincing, but in any event, based on the evidence of Mrs Berrigan, who was cross-examined, it was found to be irrelevant.
Accordingly, it cannot be said that the decision was against the weight of evidence.
[5]
Decision Was Not Fair And Equitable
Finally, it was said that the decision was not fair and equitable. Mr and Mrs Eustace referred to consumer protections concerning bait advertising and misleading services said to be contrary to provisions of the Australian Consumer Law.
While Mr and Mrs Eustace stated that this was part of the case they put to the Tribunal, their application to the Tribunal does not refer to Australian Consumer Law and on the basis of the material provided, the Appeal Panel is not satisfied that any such a case was clearly put and argued. Had that been done the respondents may have run their case differently and adduced different evidence. The guiding principle of the Act in its application to proceedings is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. It is contrary to that principle to permit a new issue to be raised in these circumstances: see, eg Coulton v Holcombe [1986] HCA 33; Suttor v Gundowda Pty Ltd [1 950] HCA 35. The circumstances may be contrasted with those that pertained in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 68 at [21].
Accordingly, we are not prepared to let that issue be raised on appeal.
The other parts of the submission on this point refer to the emotional and financial distress of having to forfeit the deposit and also because of the wedding not going ahead as planned. Those are not matters which amount to the decision below being 'not fair and equitable'.
Even if we are wrong as to these matters we do not consider that any of the factors justifying the grant of leave in Collins v Urban are met.
[6]
No Questions Of Law
Finally, we turn to the asserted 'questions of law' which remain. The first concerns the Australian Consumer Law protections. For the reasons already mentioned, this issue cannot now be raised.
The second ground of appeal is as follows: "This was not our misunderstanding, as repeated conversations were had. See statutory declarations of Vicky Jobling and Christopher Eustace." This refers to the statutory declarations sought to be adduced as new evidence, which we have rejected. The ground therefore fails.
The third ground is: "Our evidence was ignored and weight was given to the respondent's false evidence, namely statutory declarations which were not true, and witnesses did not appear for cross-examination when we did not consent for them to not appear and the member said we were not allowed to comment on these statutory declarations and not given a chance to fully put our case and evidence forward."
There is no suggestion in the reasons that the evidence of Mr and Mrs Eustace was ignored, as opposed to findings made that such evidence was not convincing or decisive. That does not amount to a question of law.
It is not a question of law for it to be asserted that evidence given below was false. Rather, that is an attempt to dispute questions of fact.
We have already dealt with the allegation that the decision was not fair and equitable or was against the weight of evidence because certain witnesses who gave evidence by statutory declaration were not available to be cross-examined. We add this: the rules of evidence do not apply in the Tribunal and we need not consider the different situation which would have arisen had the Tribunal relied, when making findings of fact, on evidence which was not able to be tested by cross-examination.
For these reasons therefore, there are no questions of law which arise properly on the appeal and we would not grant leave to appeal on any other issues. Finally, we are not satisfied that the respondent has demonstrated any special circumstances warranting a costs order on the appeal. Having failed on the appeal, it is not open to Mr and Mrs Eustace to seek an order for costs. For these reasons, the appeal and the application for leave to appeal are dismissed.
[7]
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
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Decision last updated: 17 March 2015
Parties
Applicant/Plaintiff:
Eustace & Eustace
Respondent/Defendant:
Puddy Pty Ltd t/as International Hotel Wagga Wagga