question of law – findings of fact open on the evidence – whether
Source
Original judgment source is linked above.
Catchwords
APPEAL – Australian Consumer Law – alleged breach of consumerguarantees – alleged misleading misrepresentations– no error onquestion of law – findings of fact open on the evidence – whethersignificant new evidence –whether evidence wrongly rejected –nosubstantial miscarriage of justice – leave to appeal refused –
appeal dismissed
Judgment (4 paragraphs)
[1]
For the reasons outlined above, we have found the appellant has not established that there is an error on a question of law.
The appellant also seeks leave to appeal. She contends that the decision of the Tribunal at first instance was not fair and equitable and was against the weight of evidence, raising substantially similar grounds to those set out above.
In essence, the appellant submits that the decision was not fair and equitable because the Tribunal failed to allow her to properly present key evidence despite her status as a self-represented litigant, did not take into account the admissions made by the respondent staff regarding inadequate training and substantive changes to the training modules, gave weight to the respondent's evidence and submissions but failed to probably consider or test her evidence and rejected critical evidence that she had lodged with the registry. She submits that this inconsistent handling of the evidence shows procedural unfairness and bias.
We reject these contentions for the reasons already outlined.
The appellant also contends that the decision of the Tribunal was against the weight of the evidence because the Tribunal wrongly rejected evidence and did not have regard to evidence which was available and should have been given weight in preference to the respondent's evidence. We have already considered this submission in the context of procedural fairness. We do not accept the contention that critical evidence was wrongly rejected. It therefore follows that we do not accept that this evidence, which was lodged with the registry but was not admitted by the Tribunal into evidence, should have been taken into account.
It is further submitted that the Tribunal gave too much weight to the evidence of the respondent and did not take into account admissions made by the respondent's staff about training and that the devices were only partially approved by the TGA and were not fully approved medical grade devices. The respondent, firstly, denies that admissions were made about the training (referred to above) and accepts that the devices were only partially TGA approved but says that as these devices are beauty products, they do not require medical grade approval − any representations in relation to these matters were clearly disclosed. Secondly, the respondent says these matters were considered by the Tribunal which was simply not satisfied that the appellant had established her case - this is clear from the Tribunal's reasons.
We accept these submissions.
The reasons disclose that the Tribunal considered the evidence provided by both parties. It rejected some of the material filed by the appellant, as outlined above. The onus was on the appellant to establish her case on the balance of probabilities. However, the Tribunal was not satisfied the appellant had established her case. These findings were clearly open to the Tribunal and we are not satisfied that the decision, which was based on these findings, was against the weight of evidence.
Finally, the appellant contends that leave to appeal should be permitted because "significant new evidence has arisen" being the new evidence from the appellant's clients that she now seeks to rely on. For the reasons outlined above, we are not satisfied that this is the case.
In summary, we are not satisfied that any of the grounds in cl 12 have been established or that the appellant may have suffered a substantial miscarriage of justice on any of these grounds. There was nothing unreasonable or unorthodox in the reasoning process.
Accordingly, we refuse leave to appeal.
[2]
For the reasons above, we are not satisfied that there was an error on a question of law, nor are we satisfied that there has a substantial miscarriage of justice or an injustice which is reasonably clear warranting leave. We refuse leave to appeal.
We make the following orders:
[3]
(1) Leave to appeal is refused
(2) The appeal is dismissed
[4]
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.
Parties
Applicant/Plaintiff:
Ferdousi
Respondent/Defendant:
The Global Beauty Group Pty Ltd [2026] NSWCATAP 90;
Legislation Cited (4)
Administrative Tribunal Act 2013
Administrative Tribunal Rules 2014
Trading Act 1987
Consumer Act 2010
Cases Cited (8)
Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party may appeal the 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.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd[2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters at [13] including whether the Tribunal identified the wrong issue or asked the wrong question, whether a wrong principle of law had been applied, whether there was a failure to afford procedural fairness, whether there was no evidence to support a finding of fact and whether the decision is so unreasonable that no reasonable decision-maker would make it.
This was revisited in Unique Commercial Group Pty Ltd v Cusumano[2024] NSWCATAP 204 (Unique) at [25]-[40] esp at [30]-[32], where the Appeal Panel found that Prendergast was "overly reductive" [31] and identified, together with the authorities there cited at [32], further questions of law such as: whether the Tribunal drew inferences that were not available from the facts found; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question, and whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction.
Where a party is self-represented and that party's material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] and Cominos v Di Rico[2016] NSWCATAP 5 at [13].
If a party does not raise a question of law, the party must seek, and be given, leave to appeal from a decision of the Tribunal at first instance.
The circumstances in which the Appeal Panel may grant leave to appeal under s 80(2)(b) from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
In Collins v Urban[2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
The new evidence comprised, among other things, statements from clients about damage said to have been caused by the use of the devices. We rejected the tender of those documents identified as new evidence. These documents were reasonably available at the time of the hearings, yet the appellant chose not to file and serve or rely on this evidence at any of the hearings. She now seeks to rely on this evidence in light of observations made by the Tribunal in its reasons about problems with her evidence. The appellant says she did not understand she needed other evidence. Despite this, it is apparent the appellant was given several opportunities to present her case. As observed in Ryan v BKB Motor Vehicle Repairs Pty Ltd[2017] NSWCATAP 39 at [10] an appeal does not provide a losing party with the opportunity to run their case again.
Section 80(3) of the NCAT Act provides that the Appeal Panel may, if the grounds warrant, determine the appeal by way of a new hearing and may permit fresh evidence, or evidence in addition to or in substitution for evidence received by the Tribunal at first instance. However, as stated by the Appeal Panel in Yuen v Thom[2016] NSWCATAP 243 at [17], this will be limited to circumstances where the Appeal Panel decides to conduct a new hearing because, having considered the grounds for appeal, it is satisfied this is warranted. Otherwise, internal appeals are not generally determined by way of a new hearing. An appeal on a question of law would rarely warrant the receipt of new evidence (Yuen at [21]).
The Appeal Panel considered whether leave should be given to rely on new evidence in Lettau v Artwork Transport Pty Ltd[2017] NSWCATAP 14 and found at [28]:
We regard as relevant to the discretion of the Appeal Panel to receive new evidence on the appeal (which is not by way of a new hearing), a consideration of whether that evidence was available at the time of the hearing and, if so, why it was not relied on. Other factors that may be relevant include whether it is likely that the new evidence would have produced a different result at the Tribunal (see: BCL v NSW Trustee and Guardian[2014] NSWCATAP 18 at [26] to [28]; Mielczarek v Commissioner for Fair Trading[2016] NSWCATAP 217) and any prejudice caused to the other party if the new evidence was received. There may be other matters which are also relevant to that discretion.
The appellant submits that she was not given a fair opportunity to present her case and that the Tribunal wrongly rejected evidence she lodged online before the hearing (Ground 1). The denial of procedural fairness raises a question of law: Prendergast at [13](4))
We reject this contention.
Section 38(5) of the NCAT Act provides that the Tribunal is to take such measures as are reasonably practicable "to ensure that the parties to the proceedings before it understand the nature of the proceedings" and, relevantly, "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Section 38(6) provides the Tribunal is "to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so is to enable it to determine all the relevant facts in issue in the proceedings".
As already noted, the appellant had the onus to satisfy the Tribunal about her case and was given several opportunities to present her evidence. She has not provided transcript of the hearings, or any part of the multiple hearings, to demonstrate the contended unfairness. The reasons of the Tribunal set out the evidence considered and raise the difficulties with the appellant's evidence. The hearing was listed on four separate occasions.
While it is important for the Tribunal to assist a self-represented litigant in understanding the nature of the proceedings and the hearing process to ensure that litigant is given a fair opportunity to present their case, it is not the role of the Tribunal to provide advice and direction about the evidence that should be filed.
In this case, the appellant says that she decided not to file and serve evidence from clients that may have addressed some of the issues raised by the Tribunal in its decision, for instance, at [46] because of concerns about the implications to her business. It is not clear how making a claim against a third party, where the client is unhappy or has complained about the outcome, would expose the appellant to liability. We accept a business owner may not wish to involve their clients in litigation. However, where the evidence of a client raises an important aspect of proving the underlying elements of the case, it would be unfair to the opposing party to permit a litigant to satisfy a less challenging standard of proof to establish their claim. This is evidence that should and could have been provided by the appellant to support her claims and we are not satisfied that the appellant was denied the opportunity to present her case in relation to this aspect of the case.
In relation to the "critical evidence" now sought to be relied on which the appellant says was wrongly rejected, we accept that the appellant lodged the material through the registry prior to one of the hearings. The question is whether the appellant was denied a fair opportunity to present her case because the Tribunal refused to accept this evidence and whether this deprived the appellant of a realistic possibility of a different outcome ( ;
The failure to consider or determine a relevant and material claim which is within the jurisdiction of the Tribunal may result in a failure by the Tribunal to exercise jurisdiction, which would be an error on a question of law: Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW(2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413].
The appellant contends that the Tribunal failed to consider her claims under ss 18, 54 and 60 of the ACL. We reject this contention. The Tribunal considered and made findings on each of these matters. This is apparent from [1]−[2] where the Tribunal identified the claims and relevant statutory provisions, [20] where the Tribunal extracted from the application each of the claims made by the appellant and [21]−[31] and [40]−[44] where the Tribunal identified the evidence relied on by the appellant. The Tribunal identified the difficulties with the appellant's evidence in relation to these matters at [45]−[47] and [49]−[53] and set out its conclusions at [54].
On the issue raised about the Tribunal's failure to properly consider admissions made by the respondent's staff about training defects and changes to internal modules, the respondent contends evidence about changes to the training modules is not an admission about defects but rather shows the respondent regularly updated its procedures and training. Evidence and submissions were presented by the respondent about these matters at the various hearings, and this evidence was included in the respondent's tender bundle, which was also provided to the Appeal Panel. In short, the respondent does not agree that "admissions" were made but says, in any event, that the Tribunal considered these issues and found that the appellant had not established her case.
We accept these submissions. This ground is not established.
This evidence was lodged with the Tribunal but was not filed in accordance with Tribunal directions. The Tribunal listed the proceedings for hearing on several occasions, and it is apparent that the Tribunal rejected this evidence in discussion with the parties at one of the hearings. The parties agree this was the case. The appellant alleges unfairness, however, we are unable to form a view about this because the appellant has not provided a transcript of the hearing, as she was directed to do if she sought to rely on issues arising from the conduct of the hearing. We cannot speculate on why this evidence was rejected and the fact the evidence was lodged but rejected does not compel a conclusion that this evidence "wrongly" rejected.
There could be many reasons why the Tribunal refused to admit these documents into evidence.
For instance, one of the documents referred to by the appellant in her oral submissions is an email dated August 2022 from a staff member of the respondent stating that the devices were "suitable for all skin types". The appellant further relies on what she submitted is an "expert report" from Active Optical Systems as follows: