Foundas v Hellas Europe Australia Pty Ltd

Notice of Appeal and submissions

The Notice of Appeal was filed on 17 January 2018. The appeal was filed in time.
On 1 February 2018 the Appeal Panel made directions for the hearing of the appeal.
The exact grounds of appeal were not clearly stated in the Notice of Appeal. However, the main issues appear to be: 1. an allegation of a denial of procedural fairness - the appellant stated that "the member took a very slanted and biased point of view without checking all the facts"; 2. "the contract in question that I have was with Peter Argo in Greece and not Hellas Europe Australia P/L".
The Notice of Appeal indicates that the appellant is also asking for leave to appeal to argue that the appeal should succeed on other grounds such as being not fair and equitable, against the weight of the evidence or based on new evidence.
The respondent did not file a reply to the appeal but sent the Registrar a document dated 21 March 2018 which, in effect, sets out the respondent's response to the appeal.
At the hearing of the appeal, the Appeal Panel raised with the parties a question concerning what was the basis of the appellant's claim. In this regard, the Appeal Panel asked whether the claim was based on a collateral contract with the respondent arising from the shipping contract with Peter Argo. Both parties submitted there was no contract between the respondent and the appellant and that the respondent was, at all times, the agent for Peter Argo.
At the hearing of the appeal, the appellant raised a number of matters which he said were relevant to his appeal. First, he said that there was a need for bio security checking to be carried out for the goods which were shipped and that there was a "lot of resistance" from the respondent to making the goods available. In response, the respondent said it was entitled to be paid the agent charges prior to release of the goods.
Secondly, the appellant said he did not pay the charges as they were excessive and he did not have a choice as to who the receiving agent in Australia would be. The respondent denied the charges were excessive and said that charges were continuing to accrue because the appellant had failed to collect his goods and pay for them for more than 12 months. Consideration
This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied an appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] 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.
Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [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.
Also, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11].
The allegation of lack of procedural fairness in the Notice of Appeal could amount to an error of law. However, in the Appeal Panel hearing, the appellant did not argue that there was a lack of procedural fairness giving rise to an error of law. The appellant did not say why the Member was "biased". The Appeal Panel is not persuaded that there was any lack of procedural fairness in this regard.
The appellant's main complaint was that the Tribunal did not accept his submissions that the charges were excessive and that he should not have to pay the charges claimed by the respondent in order to obtain the release of his goods.
The Tribunal concluded that there was a contract entered into in Greece whereby the respondent was to be the clearing agent. The Tribunal also found that the appellant provided no evidence to support the claim that the charges of the respondent were excessive. If the argument was that the finding that the charges were not excessive was not fair and equitable or against the weight of evidence, then the Appeal Panel is satisfied that there was no error in that finding. That is because there was no evidence offered or available to make an alternate finding.
There was lengthy discussion during the Appeal Panel hearing about the nature of the legal relationship between the appellant and the respondent. The purpose was to establish if the Tribunal had erred in this primary issue.
Both the appellant and respondent said that there was no contract between them. Both said that at all times the respondent acted as the agent of Peter Argo and there was no collateral contract between the appellant and the respondent.
The Tribunal found in its reasoning on 20 December 2017 the appellant entered into a contract in Greece with Peter Argo. It also found that the respondent was the "agent" of the principal in Greece. Neither the appellant nor respondent sought to argue for a different interpretation or persuade the Appeal Panel that their relationship was different to that found by the Tribunal.
The Appeal Panel accepts those findings are open on the evidence and is not persuaded that the Tribunal fell into legal error in making them.
That being the case, the appellant's rights, if any, are against the principal in Greece for the alleged excessive charges of its agent, namely Peter Argo. Consequently, the claim against the agent in contract must fail.
In this regard we note evidence before the Appeal Panel included the terms and conditions which appear on the reverse side of the invoice or contract from Peter Argo. Both parties agreed these terms were a part of the original contract between the appellant and Peter Argo.
The appellant argued that clause 3 of these printed terms assisted his case. It reads: 3. The Party is responsible for choosing the carrier and time for shipment of property.
The terms defined "The Party' as Peter Argo.
The appellant had argued that he had not agreed to the respondent being appointed the receiving agent in Australia and that this clause in some way supports this proposition. The Appeal Panel is not persuaded that this clause assists the appellant in identifying an error in the Tribunal's decision because it appears to deal with the carrier and shipment at the port of departure, not the destination. Further, the receiving agent, the respondent, was in fact noted on the front side of the invoice document which constituted the contract between the parties. That is, the written contract recognises the goods would be shipped to the respondent to be held for collection in Australia by the appellant and there is no evidence to suggest the parties had agreed for an alternative receiving agent to be appointed.
There was nothing else in this additional evidence that suggests the Tribunal was in error in concluding that the respondent was the agent of Peter Argo and neither party sought to argue to the contrary.
It follows that any proceedings which the appellant sought to bring for breach of contract or to claim that the charges in the contract were excessive was a claim which should be brought against Peter Argo and not the respondent.
In this regard we note such a claim appears to be subject to an agreement to arbitrate. Condition 16 of the written agreement provides: 16. Any controversy or claim related to these conditions shall be settled by arbitration under such laws of the country of Greece.
Finally, we note no suggestion was made by the appellant that he was not required to pay the reasonable charges of the respondent. Rather, the appellant claimed that the charges for the three consignments totalling $880.00 were in fact unreasonable and he should not have to pay for the ongoing storage costs, despite not collecting his goods when he was told they were available. In these circumstances, even if there was a contract between the parties or otherwise a basis for the Tribunal to intervene and make orders in respect of excessive charges, the appellant's claim fails because he has not proved the charges were in fact excessive.
Consequently, the Tribunal was correct to dismiss the application brought by the appellant.
It follows that no error of law has been established nor are there any grounds for the grant of leave to appeal. It follows that leave to appeal should be refused and the appeal should be dismissed Orders
The Appeal Panel makes the following order: 1. Leave to appeal is refused and the appeal is otherwise dismissed

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