Gussoni v Burnheim

No Extension of Time Required

1. Reasons were given on 1 December 2017. The time for lodging a Notice of Appeal is within 28 days of the day on which an appellant was notified of the decision or given reasons for the decision (whichever is the later). The date stamp on the Notice of Appeal is dated 3 January 2018. That date stamp, on its face, indicated the Notice of Appeal was lodged out of time and the parties assumed an extension of time for lodging the Notice of Appeal was required.
2. However, the appellant tendered a receipt from the courier company she had used for delivery of her Notice of Appeal and accompanying documents to the NCAT's Registry for lodging. It is apparent from that receipt that delivery to the Registry occurred on 27 December 2017, a date within 28 days of the day on which an appellant was notified of the decision or given reasons for the decision. A document may be "lodged" with the Tribunal by leaving it at the Registry - Civil and Administrative Tribunal Rules 2014 (NSW), r 13(3)(a).
3. Accordingly, we find that the Notice of Appeal was lodged within the time allowed and no extension of time for lodging the Notice of Appeal is required. Had an extension of time been required we would have granted it.

Decision

1. In our opinion the Tribunal below erred in the following three respects: 1. giving inadequate reasons; 2. procedural unfairness; and 3. overlooking important evidence.
2. In the circumstances that occurred, these three issues are interlinked and so shall be considered together.
3. The parties are not legally trained and were unrepresented at the hearing before the Tribunal.
4. The first time the question whether the appellant was the proper contracting party (purchaser) was raised was at the hearing. It was raised by the Tribunal and not by the respondents. That is not to say that the Tribunal was in error in raising the matter, nor do we so find. Indeed, in our opinion the Tribunal was correct to do so. The error, in our opinion, was how that matter was subsequently dealt with.
5. In its reasons the Tribunal relied upon three pieces of evidence it said established that the appellant was not the purchaser of Panda. They were an invoice dated 30 April 2016 issued by Central West Equine (a veterinary practice) to Capable Solutions for various services including the pre-purchase veterinary examination. The second was a text message sent by the appellant to the first respondents on 1 June 2016 asking for a receipt for the purchase of Panda to be made out in the name of the Gussoni Family Trust. The third was the appellant's oral evidence.
6. The appellant was not sworn and, in that sense, did not "give evidence" at the hearing. Rather, she answered questions from the bar table asked of her by the Tribunal.
7. In doing so, whilst she did say at one point, and in answer to a question put by the Tribunal, that the trust was the entity that purchased Panda (by "trust" the Member should be taken to be referring to Capable Solutions), it is apparent from the sound recording that the appellant was unsure whether that was the fact or not.
8. The appellant said that "originally, yes", she had at one stage thought that Capable Solutions would purchase Panda because she thought she might purchase a business involving horses, but she also said that she remembered the funds for the purchase of Panda came from her personal funds (and not funds belonging to Capable Solutions).
9. When asked whether she had a copy of a bank statement establishing that fact she replied that she would try and find it (amongst the material she had brought to the hearing). It is apparent from what transpired that day that she did not have a copy of any such bank statement with her, which is unsurprising given the issue had never been raised before. Even the first respondent said she was unaware of the fact (or assertion) that the purchaser might have been a trust (and not the appellant).
10. On this appeal the appellant has produced a bank statement indicating a withdrawal from her account of the precise purchase price for Panda, the withdrawal also being made on the same date as the receipt for the bank cheque the appellant used to transfer the purchase price to the vendor. The clear inference from these documents is that the funds used to purchase Panda were funds belonging to the appellant.
11. Amongst the documents before the Tribunal were other documents which supported the proposition that the appellant, and not Capable Solutions, was the purchaser of Panda.
12. Included amongst those documents was the pre-purchase examination report dated the day of sale which recorded the appellant as the purchaser, a text message dated 4 February 2017 asking for a receipt to be issued in favour of the appellant, various veterinary surgeon invoices for treatment of Panda between 21 June 2016 and 7 March 2017 issued to the appellant, a receipt dated 15 March 2016 (the parties accept that date was in error) issued by the vendor(s) in favour of the appellant, and written submissions of the first respondent in which she consistently referred to the appellant as the purchaser.
13. In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. He went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge… may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. [Our emphasis]
14. The principle of justice being done and being seen to be done was discussed by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. His Honour, in a passage frequently cited with approval, said at 443 - 444 (citations omitted): … reasons need not necessarily be lengthy or elaborate ... The scope of the reasons to be given is ... related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlook the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. ... Third, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. ... …In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. … an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice… Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.
15. In our opinion there was critical evidence supportive of the appellant's position that she (and not Capable Solutions) purchased Panda. This evidence was both documentary (identified at [30] above]) and oral (in what the appellant told the Tribunal from the bar table, identified at [26] above]), which was not referred to in the reasons for decision. It is appropriate to infer, in this case, that that evidence was overlooked and not considered.
16. That evidence was important or critical to the proper determination of the issue raised by the Tribunal and, because it conflicted with the evidence relied upon by the Tribunal, it should have been considered and referred to. It was not referred to. In our opinion it is appropriate to draw the inference that this important or critical evidence was overlooked and not considered. Accordingly, in failing to do so, in our opinion a miscarriage of justice occurred and the Tribunal erred in law.
17. Further, in our opinion, the Tribunal's reasons were not adequate. They do not meet a minimum standard which would place the parties in a position to understand why the decision was made (in the absence of any mention or analysis of the evidence we have referred to at [26] and [30] above) sufficiently to allow them to exercise their right of appeal. For example, there are no reasons given which may explain to this Appeal Panel why the evidence we have referred to (assuming it was considered), and which supported the appellant's claim that she purchased Panda, was either rejected or was regarded as outweighed by the evidence referred to in the reasons for decision.
18. In addition, the issue having been raised for the first time at the trial, the appellant should have been given an opportunity to obtain such further evidence she may have desired and which went to that issue. Most particularly, the bank statement we have referred to at [28] above.
19. In addition, there may have been oral evidence she could have given on the topic, such as the content of conversations between herself and the first respondent which may have assisted her case. She was not asked about that possibility.
20. The appellant was not asked whether she might wish to seek an adjournment to obtain that evidence. Rather, the only mention of an adjournment was in relation to a possible adjournment which the respondents may have sought if the appellant sought leave to add Capable Solutions as an applicant.
21. It is open to doubt whether the respondents would have sought that adjournment. Their defence to the appellant's claim did not involve any assertion that the appellant was not the purchaser. As the first respondent told the Tribunal, until the Tribunal mentioned it, she was unaware of the fact (or assertion) that the purchaser might have been a trust rather than the appellant. The respondents' submissions repeatedly referred to the appellant as the purchaser. The respondents were not asked whether they would, in fact, seek an adjournment if the appellant sought leave to add Capable Solutions as an applicant, or whether they would in any way be prejudiced by that addition. If there were only two possible purchasers, and both were applicants, it is difficult to see why an adjournment would have been sought or granted.
22. It is true that the appellant did say she wanted the proceedings dismissed, but that was in the context of having the purchaser issue raised for the first time at the hearing, and by the Tribunal rather than the respondents. She was not asked whether she desired an adjournment to collect other evidence, but only if she desired to add Capable Solutions as an applicant (at the likely cost of an adjournment) and in circumstances where the Tribunal had indicated its preliminary view that the appellant was not the purchaser Panda.
23. In a substantive sense, the appellant arrived at the hearing of the matter reasonably thinking that her identity as purchaser was not in dispute. The real issue between the parties, as disclosed by their written submissions, was Panda's behaviour, the cause of that behaviour, and whether the respondents had breached any of the asserted consumer guarantees.
24. There is no doubt that the Tribunal was obliged to provide both parties natural justice and procedural fairness in relation to the hearing. In our opinion, with respect, the Tribunal failed to provide natural justice and procedural fairness to the appellant.
25. The dictates of natural justice and procedural fairness (or the content of those duties) vary according to the circumstances. As Leeming JA, with whom McColl and Macfarlan JJA agreed, said in Day v Harness Racing NSW [2014] NSWCA 423; (2014) 88 NSWLR 594 at [107]: The particular facts of a case do, of course, impact the content of anyobligation to accord procedural fairness ...
26. This case is one in which the "hearing rule" (an aspect of natural justice and procedural fairness) was, in our opinion, infringed. The hearing rule requires a decision-maker to give a person whose interests may be adversely affected by a decision an opportunity to present his or her case. Indeed, s 38(4) of the Civil and Administrative Tribunal Act (No 2) 2013 (NSW) (the "NCAT Act") requires the Tribunal to take such measures as are reasonably practicable to ensure parties have a reasonable opportunity to be heard.
27. In this case, the appellant did not have a reasonable opportunity to gather, and bring to the hearing, important evidence (such as the bank statement to which we have referred) which went to the issue of whether she, rather than Capable Solutions, was the purchaser of Panda, given that the issue had not previously been raised. At the same time, the possibility of an adjournment to gather such further evidence as may be available to her was not mentioned, but, rather, only the possibility of an adjournment at the respondents' request should the appellant seek leave to add Capable Solutions as an applicant and in circumstances where the Tribunal had indicated to the non-legally trained appellant its preliminary view that, having read the material lodged by the parties, the proper purchaser was Capable Solutions.
28. It seems to us that, in circumstances where the appellant was not legally trained nor legally represented, where the Tribunal had indicated a preliminary view that Capable Solutions was the purchaser and not the appellant, and where the possibility of an adjournment was mentioned only in connection with the possible joinder of Capable Solutions as an applicant, the failure to raise with the appellant the possibility that she may wish to consider seeking an adjournment to obtain further evidence that she (and not Capable Solutions) purchased Panda operated to deny the appellant natural justice and procedural fairness.
29. Where procedural unfairness is alleged, the appellant must demonstrate that he, she or it suffered some "practical injustice" - the oft-quoted expression used by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] - [38]. That is, at the risk of over-simplification, did the appellant lose the opportunity to obtain, and provide to the Tribunal, important evidence relating to the issue of purchaser. In the circumstances that occurred it is our opinion that she did lose that opportunity. She did not then have available the bank statement she has shown us on this appeal. The document is an important piece of evidence on the issue of purchaser, and so the lack of mention of an opportunity to seek an adjournment to obtain it worked a practical injustice on the appellant.
30. Therefore, in our opinion the appellant was denied natural justice and procedural fairness in the circumstances that occurred at the hearing of 1 December 2017, important or critical evidence was overlooked and not considered, and the Tribunal's reasons were not adequate.
31. For those reasons we are of the opinion that the appeal should be upheld.
32. Two further matters should be mentioned.
33. First, although we are of the opinion that the appeal should be upheld, we wish to observe that it is apparent from the sound recording of what transpired at the hearing that the Member was endeavouring to resolve the parties' dispute in a just, quick and cheap manner, with as little formality as could be permitted and according to equity and good conscience. Be that as it may, it seems to us that, in attempting to do so, the Member erred as we have outlined above.
34. Second, nothing we have said should be taken as the making of any findings as to who was the purchaser - the appellant or Capable Solutions. We have not decided who was the purchaser. The matter will be remitted to the Tribunal to be heard, and parties should approach that hearing on the basis that no determinations have been made on any issues between them. That includes other issues which were mentioned during the appeal (but which were not the subject of the appeal) and the hearing at first instance, such as who were the owners of Panda, whether Capable Solutions could be a "consumer" for the purpose of the consumer guarantees relied upon, or any other issue.

Costs

1. The total amount claimed by the appellant is $15,500.
2. The appellant sought costs of the appeal as she was successful, and we heard submissions from the parties.
3. We are obliged to apply the costs rules applying to the proceedings before the Tribunal - Civil and Administrative Tribunal Rules 2014 (NSW), r 38A.
4. The Tribunal below did not make any order as to costs under clause 10(2) of Schedule 4 to the NCAT Act. Therefore, as the amount claimed was less than $30,000, each party would ordinarily be required to pay their own costs of the hearing below unless there were special circumstances warranting an award of costs - s 60 of the NCAT Act. Sub-section (3) of s 60 says: In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) he nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
5. Those are the same matters to which we must have regard in this appeal.
6. None of the matters identified in s 60(3)(a) - (f) of the NCAT Act exist in this case, nor did the appellant suggest otherwise. Rather, the appellant relies upon s 60(3)(g), the matter being a letter she wrote to the respondents dated 19 December 2017 setting out her contention that the Tribunal below erred in law, seeking the respondents' consent to the decision below being set aside and informing the respondents that she would rely upon the letter in relation to costs of the appeal if they did not accept the offer.
7. Offers to settle proceedings before a hearing or appeal and seek a more favourable order for costs than would ordinarily be granted if the offeror succeeds, are, as lawyers are aware, commonly referred to as "Calderbank offers" (we put to one side offers of compromise under various court's rules which are not relevant in this case).
8. Calderbank offers apply whenever "the party making the offer ultimately seeks to obtain a costs advantage if the offer is not accepted" - Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd (No 2) [2017] NSWCA 340 per Beazley P and Meagher and Payne JJA at [31].
9. As the Court of Appeal said in that case at [30]: Calderbank offers are a well-established means of parties seeking to compromise proceedings in circumstances where, provided that the offer is a genuine offer of compromise and the opposing party unreasonably rejects the offer, the court may, in the exercise of its discretion, make a special costs order in favour of the offeror.
10. The appellant's letter contains no element of compromise. It asked for a complete victory.
11. Further, we are not satisfied that it was unreasonable for the respondents not to have accepted the offer. The letter does not explain why the Tribunal below erred other than to refer to the bank statement we have identified at [28] above. That document (through no fault of the respondents) was not produced at the hearing. Further, it is but one of a number of documents relevant to the question of purchaser, an issue that has yet to be determined on all of the evidence the parties may bring on that issue.
12. In those circumstances, we are not satisfied that any special circumstances exist that warrant an order for costs in the appellant's favour. Accordingly, in the absence of any special circumstances, the s 60 of the NCAT Act requires an order to be made that each party is to pay her and their own costs of the appeal.

Orders

1. We make the following orders: 1. Appeal upheld. 2. The decision of the Tribunal below is set aside. 3. The matter is to be remitted to the Tribunal to be determined according to law. 4. Each party is to pay her and their own costs of the appeal.

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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: 29 March 2018