Fit College Pty Ltd v Styrud

Grounds of appeal

1. In its Notice of Appeal Fit College under the heading "Orders Challenged on Appeal" provides: 1. "Page 9 Item 33 - "I have found the College breached the term requiring it to provide a mentor program and assign a mentor to the applicant"…Please see attached Document 1 and 2 as supporting evidence that shows communication from Mentors beginning and continuing with the student from the beginning of the course. This is factual and evidence that the mentoring program was assigned"; 2. "Page 9 Item 33 "The Applicant's Practical experience with a qualified trainer in her local area"…Please see attached document 3 that clearly shows assistance in finding practical assessments and performing practical assessments, once again this is factual evidence contrary to the findings"; 3. "Page 10 Item 38 "The applicant's loss included undertaking the course in the absence of a mentor for over a year, and not having a trainer for the practical part of the course"…Once again Documents 1 and 2 are extracts of communication that is clearly evidence to the contrary of this finding and shows that all was performed by Fit College. Please document 3 attached."
2. Fit College's ground of appeal in its notice of appeal was as follows: 1. "Fit College has clearly shown in all evidence that the findings mentioned above are clearly not correct and the evidence shows completely to the contrary of the findings".
3. From the written submissions and the way the case was conducted on appeal by Fit College, it seems that in substance, the grounds of appeal of Fit College were as follows: 1. The finding that there was no evidence that Fit College had assigned a mentor to Ms Styrud until 5 August 2014 was wrong in law or against the evidence (the Mentor Ground of Appeal); and 2. The finding that Fit College did not comply with the term which required it to arrange Ms Styrud's practical experience with a qualified trainer in her local area was wrong in law or against the evidence (the Qualified Trainer Ground of Appeal).
4. There was no challenge to the Senior Member's finding that the terms in question had been incorporated into the contract between the parties.

Jurisdiction and leave issues

1. The appeal in the present case was lodged within 28 days from the day on which Fit College was notified of the Decision and therefore it was lodged within time under Rule 25 of the Civil and Administrative Tribunal Rules 2014.
2. The decision appealed against was a general decision of the Tribunal determining a matter over which it has general jurisdiction within section 29 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "Act"). The Tribunal has internal appeal jurisdiction over any decision made by the Tribunal in proceedings for a general decision under section 32 (1) of the Act.
3. The present appeal is therefore an internal appeal under section 80 of the Act. Section 80 of the Act provides as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note : Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (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 Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
4. As the decision was not an interlocutory but a final decision, an internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on other grounds.
5. As the decision at first instance was made in exercise of a function of the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 applies to restrict the Appeal Panel's ability to grant leave to appeal. That clause provides that an Appeal Panel may grant leave under section 80(2)(b) of the Act for an internal appeal against a decision on a ground other than an error of law 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 of the proceedings under appeal were being dealt with).
6. In the present case, the Appellant sought to rely on some email evidence which was not before the Senior Member at first instance. The Tribunal decided that as that evidence consisted of emails which were reasonably available at the time the decision at first instance was dealt with, leave could not be granted, relying on clause 12(1)(c).
7. As we understood the submissions of Fit College, it was submitted that the Decision at first instance involved an error of law as there was no evidence to support the findings of breaches set out above or, in the alternative, leave should be granted because the findings of breaches at first instance were against the weight of the evidence. In this respect Fit College relied on certain emails which were annexed to its written submissions. Some of these emails were before the Tribunal at first instance and some were not.
8. The Tribunal accepts that there is an error of law where there was no evidence to support a finding of fact: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]. There would similarly be an error of law where the decision maker found there was no evidence of a fact in issue where evidence supporting the fact was before the Tribunal.

Fit College's submissions

1. Fit College was represented at the hearing of the appeal by Mr Mark Stitt who is a director of Fit College. Leave was granted for Mr Stitt to appear by telephone.
2. In relation to the Mentor Ground of Appeal, Mr Stitt submitted that the email correspondence before the Tribunal at first instance established that the College had provided Ms Styrud with a mentor through the provision of access to online tutors and staff members. Accordingly, Mr Stitt submitted that the Senior Member erred at first instance in the conclusion at [29] of the Decision by finding that there was no evidence of the College operating a program which could properly be described as a "mentor program" as required by the term of the contract until 5 August 2014.
3. In relation to the Qualified Trainer Ground of Appeal, Mr Stitt submitted that the email evidence in substance established that the College had arranged for Ms Styrud's practical experience with a qualified trainer in her area. Fit College had contacted fitness facilities in the eastern suburbs where Ms Styrud was based and invited her to contact those facilities to arrange the practical experience with a qualified trainer. It was submitted that the Senior Member at first instance thus erred in the finding at [25] that the College had not complied with the term of the contract which required it to arrange Ms Styrud's practical experience with a qualified trainer in her area.
4. Reliance was also placed in relation to the Qualified Trainer Ground of Appeal on an email from Mr Joe Walsh dated 5 July 2015 where he asserted that he had offered to assist Ms Styrud in finding a placement at a fitness facility. It was pointed out by Fit College in its oral submissions that this email was not referred to in the Decision at first instance.

Ms Styrud's submissions

1. Ms Styrud appeared in person. Ms Styrud submitted in relation to the Mentor Ground of Appeal, that providing online access to teachers did not constitute the provision of a mentor program. Ms Styrud submitted that this required the College to identify a particular person who established a fitness coach relationship with the student and who contacted the student and was available for online help when reasonably required. It was further submitted that although a person named Ms Kelly Carthy had sent an email in the latter part of 2014, this was directed to online students generally and not to Ms Stryrud specifically. Thus it was asserted that Ms Carthy could not be regarded as a mentor to Ms Styrud.
2. In relation to the Qualified Trainer Ground of Appeal, Ms Styrud submitted that the contractual obligation to arrange Ms Styrud's practical experience with a qualified trainer in her area required Fit College to contact a trainer, arrange the provision of practical experience and then notify Ms Styrud of the identity of the trainer and the location of the facility. This was not done.
3. In the course of hearing the submissions, the Appeal Panel referred to an email from Ms Dew of the College to Ms Styrud dated 14 August 2014. The email set out various fitness facilities which Ms Styrud had identified in her local area. Ms Dew stated in the email: "I will wait to hear from the two places I have left messages with. Just so you are aware I am not organising the vocational placement for you, I am happy to contact and ask if the facility will offer it for a student and pass the manager's details to you to organise. I don't know what tasks you have completed and what tasks you need to complete. Are there any other gyms that you would like me to contact?"
4. Fit College conceded in argument that this was the usual practice of the College and that it regarded it as beneficial to the student to contact the facility to arrange the vocational placement and thus confirm a contact in the industry.

Fit College's submissions in reply

1. Fit College submitted in reply that the email from Ms Dew clearly established that Fit College was making all efforts to satisfy its contractual obligation to arrange Ms Styrud's practical experience with a qualified trainer in her area.

The Decision at first instance

1. The Senior Member at first instance had detailed written submissions from both parties annexing voluminous email correspondence. It seems from the Decision that the Senior Member took into account the email correspondence before her. However, there is no reference in the Decision to the email from Mr Walsh, a trainer and assessor at the Five Dock clinic of Fit College, dated 5 July 2015 which has been referred to above and was relied upon by Fit College. The email included the following: I distinctly asked if she [the Respondent] needed assistance with practical placement, indicating I could sign her placement hours and she indicated that she had organised it for herself and clearly she was not interested. If it is a concern she has with the facility then I have a standing arrangement to easily arrangement placement from suitably qualified individuals at a multitude of alternative locations across Sydney, however I don't think there would be any genuine concern with the Five Dock facility. If Lisa would like to do additional placement hours to gain extra experience in the workplace over and above that already done by her, I am happy to arrange this and this can be conducted across a choice of commercial facilities.

Analysis

1. The Appeal Panel was greatly assisted by the submissions of both parties. In particular, the Appeal Panel was assisted by the submissions of Fit College by identifying the specific emails which they relied upon in support of the submissions made.

The Mentor Ground of Appeal

1. In our view, no error can be discerned in the reasoning in the Decision in relation to the Mentor Ground of Appeal. The contractual obligation to assign a mentor to Ms Styrud must be seen in the context of the contract as a whole which was the provision of an online course. A student undertaking an online course does not have the advantage of regular face to face contact with lecturers. Therefore having regular online contact with a particular staff member operating as a mentor would greatly assist a student in understanding and completing a course. This contractual term in our opinion obliged Fit College to identify and to assign to an online student a single mentor who made contact with the student and was available to the student as an identified resource to assist the student with the studies or to identify an alternative staff member who should be contacted by the student.
2. The emails relied upon by Fit College refer to contact by various teachers in relation to assessment and contact through emails distributed generally to all students. In our view, this does not amount to the assignment of a mentor to Ms Styrud under a mentor program. No particular person was identified at the commencement of the course as a mentor for Ms Styrud to contact.
3. Accordingly, we find that there was no error of law by the Senior Member at first instance in the conclusion in paragraph [29] that there was no evidence of the College operating a program which could properly be described as a "mentor program" for Ms Styrud until 5 August 2014. No mentor was assigned to Ms Styrud before 5 August 2014.

Qualified Trainer Ground of Appeal

1. The 'Qualified Trainer Ground of Appeal' is in substance a claim by Fit College that the Tribunal's finding at first instance that the College did not arrange practical experience with a qualified trainer in the area was against the weight of evidence.
2. As the decision appealed against was a decision made in the Consumer and Commercial Division of the Tribunal, it is a prerequisite in order for the Appeal Panel to consider this ground of appeal, for it to grant leave to Fit College because the decision of the Tribunal under appeal may have involved a substantial miscarriage of justice because the decision was not fair and equitable or the decision of the Tribunal under appeal was against the weight of evidence: clause 12 (1)(b) of Schedule 4 to the Act
3. The Appeal Panel case of Collins v Urban [2014] NSWCATAP 17 highlights that Clause 12 only requires that the appellant "may" have suffered a "substantial miscarriage of justice" and the meaning was summarised as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
4. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel of the Tribunal conducted a review of the relevant cases at pars [65]-[79] and concluded at par [84]: 84. 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.
5. Further, as was explained in Pholi v Wearne [2014] NSWCATAP 78 at par [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
6. We gratefully adopt those statements of principle.
7. It is clear from the Decision that the Senior Member at first instance made a factual finding that the College did not comply with the term which required it to arrange Ms Styrud's practical experience with a qualified trainer in her area. The reasoning in [25] was as follows: There was a breach of this term at the beginning of the contract when the College failed to take any steps to arrange this for the Applicant. Once the Applicant had agreed to arrange her own practical training, the College was not in breach. However, when the Applicant requested the College to arrange practical training for her in June 2014, it took several months for the College to suggest the name of a trainer.
8. There was clearly some evidence before the Tribunal at first instance relating to the College's failure to provide practical training when requested.
9. Emails establish that one option offered by the College to Ms Styrud in an email dated 13 August 2014 was to choose a fitness facility for Ms Styrud and "get you set up to your placement". Ms Styrud identified a number of various fitness facilities which were suitable in her area. However, it is clear in the email from Ms Dew dated 14 August 2014 which we have referred to above that the College was not organising the vocational placement for Ms Styrud.
10. In our view there was clear evidence before the Tribunal at first instance to support the finding that the college did not arrange practical experience for Ms Styrud with a qualified trainer in her area. The approach adopted by Fit College, of leaving it to the student to arrange practical experience, was not sufficient to satisfy the contractual term obliging it to arrange Ms Styrud's practical experience with a qualified trainer in her area. Having considered the submissions on this point we are not satisfied that the decision was against the weight of evidence.
11. Therefore leave to appeal is not granted. The grounds of appeal are not made out and accordingly 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: 22 December 2015