Holley v Evatt

NCAT Appeal Panel|2014-09-30

Introduction 1This is an application for leave to appeal and an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 3 March 2014. 2Ms Holley (the appellant) provides computer and web design services. Ms Evatt (the respondent) and the appellant entered into an oral contract for design and construction of a website advertising wedding venues in the Blue Mountains (the contract). At first instance, the Tribunal ordered that the respondent pay $990 to the appellant and provide access to that website (the Decision).

Procedural History and Jurisdiction 3By application filed on 9 October 2013, the now respondent brought a claim under the Consumer Claims Act 1998 (NSW) in connection with the contract. Although the application was filed in the Consumer, Trader and Tenancy Tribunal, the New South Wales Civil and Administrative Tribunal (the Tribunal) commenced on 1 January 2014 and all matters were transferred to the Tribunal pursuant to Schedule 1, s7 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). The proceedings were taken to have been duly commenced in the Tribunal and eligible to be heard and determined by the Tribunal. The application was determined by the Tribunal on 3 March 2014. 4The orders the subject of the appeal are the following: 1. The Tribunal orders that the respondent is to give access to the applicant to leuralla.com on or before 10-Mar-2014. ... 4. The respondent is to reimburse the applicant the sum of $990.00 on or before 7-Apr-2014. 5On 10 March 2014, within time for filing, the appellant filed a Notice of Appeal. By letter dated 24 March 2014 the Tribunal wrote to the appellant informing her that by operation of Schedule 1, clause 7(3)(b) of the Act, the appeal may be misconceived and it was appropriate to proceed by way of rehearing. This was a mechanism for review, prior to the formation of this Tribunal. By order dated 30 April 2014, the rehearing application was dismissed. On 13 May 2014 the appellant filed a further Notice of Appeal against the orders extracted in the previous paragraph. 6Section 80(1) of the Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel. An internally appealable decision is defined in s 32 of the Act to include a general decision made by the Tribunal. A general decision is defined in s 29 of the Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. In this case, the Tribunal's jurisdiction was enlivened by s 7 of the Consumer Claims Act 1998 (NSW). The Tribunal therefore had general jurisdiction in relation to the consumer claim and the Appeal Panel has jurisdiction in relation to the internally appealable decision. 7By s 80(2) of the Act, an appeal from an internally appealable decision lies, as of right, on any question of law or, with the leave of the Appeal Panel, on any other ground. The question of leave is further restricted in the case of an appeal from the Consumer and Commercial Division, by clause 12 of Schedule 4 of the Act. 8The appellant's review rights are by way of appeal or leave to appeal to the Appeal Panel. By orders dated 21 July 2014 Wright J, President ordered that the appellant serve copies of the two Notices of Appeal on the Respondent and stood the matter over for further directions. On 11 August 2014 Wright J, President made further procedural orders and listed the matters for hearing on 30 September 2014. 9Nothing turns on the fact of there being two Notices of Appeal. At the hearing, the respondent accepted that the two Notices of Appeal should be treated as one Notice of Appeal against the Decision and instituted within time.

The decision of the Tribunal at first instance 10The Tribunal set out the history of the dispute and the nature of the oral contract entered into on 19 February 2013. The appellant agreed to design a website to publicise and attract bookings to the respondent's wedding venue. 11The Tribunal considered the matters required and determined that: (a)The appellant was not given enough time to complete the website; (b)The deadline given by the respondent to the appellant on 9 April 2014 to deliver the completed site was too short; (c)The parties did not agree on a date before the unilateral imposition by the respondent of a 9 April 2014 deadline; (d)The appellant had only partially completed what she had contracted to deliver; (e)The work delivered was of poor quality; (f)The respondent terminated the agreement without giving the appellant reasonable time and opportunity to complete the site; (g)The appellant ought to be paid for work completed before 15 April 2014; (h)The respondent was given a "draft" copy of the site which should be paid for; (i)The respondent received the benefit of two searches conducted by the appellant. These searches formed part of separate agreements and any costs incurred thereunder are not refundable.

Material before the Appeal Panel 12The Appeal Panel has the following material before it from the appellant: (a)The 90 page document filed and served in proceedings below, attaching email correspondence and other documents; (b)The first Notice of Appeal dated 10 March 2014 and a 15 page submission document entitled Grounds of Appeal and Orders challenged on Appeal; (c)The second Notice of Appeal, filed on 13 May 2014 attaching 8 pages of submission, the Tribunal decision under review and an expert report, not tendered below, dated 6 April 2014 under the hand of Ms Jodi Allbon of "Let's buildawebsite". 13The respondent tendered the documents filed and served in the proceedings below as well as the original application form. The respondent did not file a Notice of Reply, contrary to directions issued by the President. The requirement to file a Notice of Reply is not mandatory and there are no default judgment provisions under the Act. 14The appellant did not argue that any prejudice had arisen from the respondent's failure to file a Notice of Reply. Furthermore, the respondent relied solely on oral submissions, dispensing with the need to attach any documents to a Notice of Reply. 15The respondent appeared at the directions and the hearing and was ready to defend the appeal. It is therefore the view of the Appeal Panel that the absence of a Notice of Reply is of no consequence and as no objection was taken, the Appeal Panel proceeded with the hearing.

The Notices of Appeal 16The appellant is not legally represented. The appellant completed the requisite form, which is a standard form for an internal appeal and includes an application for leave to appeal. As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law and with leave on any other ground. Whilst not identifying a question of law, the appellant did not concede that leave to appeal was necessary. In any event, leave to appeal was sought. Accordingly, we must consider whether questions of law arise on the appeal and if not whether leave ought to be granted to appeal on any other ground.

Requirement for Question of Law 17The Notice of Appeal does not articulate, in express terms, any question of law. The importance of the question of law was noted by the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11]. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast cited the following at [13]: (1)Whether there has been a failure to provide proper reasons. (2)Whether the Tribunal identified the wrong issue or asked the wrong question. (3)Whether a wrong principle of law has been applied. (4)Whether there was a failure to afford procedural fairness. (5)Whether the Tribunal failed to take into account a relevant (mandatory) consideration. (6)Whether the Tribunal took into account an irrelevant consideration. (7)Whether there was no evidence to support a finding of fact. (8)Whether the decision was so unreasonable that no reasonable decision-maker would have made it.

The appellant's contention 18First, the appellant submitted that the conclusion of the Tribunal, that the website was not constructed on 15 April 2014, was against the weight of the evidence. 19Secondly, the appellant submitted that the Tribunal, constantly interrupted by the respondent, had no opportunity to appreciate the processes involved, the evidence presented or the roles and responsibilities of the parties to the dispute.

Conclusion on whether question of law raised 20The appellant's first contention amounts to a factual dispute. As noted by the Appeal Panel in Prendergast at [17] and [18] whilst a wrong finding of fact does not amount to an error of law, it may be indicative of an underlying error and there are fine distinctions between fact and law. Accordingly, the issue must be carefully considered. 21The material filed at first instance by the then applicant included a report by Fernfin Pty Ltd. The primary conclusion of the Tribunal was based upon that evidence. The Appeal Panel is satisfied that the appellant's first contention concerns weight given to evidence and does not raise a question of law. 22The second contention raises a question of law, as it raises the question whether the now appellant was, at first instance, afforded a hearing. It is a contention that the appellant was denied procedural fairness.

Denial of Procedural Fairness 23The obligation of the Tribunal to afford procedural fairness was recently considered by the Appeal Panel in Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41. The Appeal Panel (Wright J, President, M Harrowell, Principal Member and Dr J Renwick SC, Senior Member) said at [59] to [63]: 59 Rather, the issue is whether the appellant, in the perhaps unusual circumstances of this matter, was denied an opportunity to be heard. 60 We have already noted the terms of ss 38(2) and (5) of the Act. 61 Our attention was drawn to the statement of Giles JA in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011) 83 NSWLR 23 at [63] that: ...in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision. 62 This Tribunal stated in CKG v Public Guardian [2014] NSWCATAP 32 at [14]: the Tribunal is bound to accord procedural fairness ( or 'natural justice') to parties to its proceedings, and, in addition to persons whose interests, rights or legitimate expectations are affected: see, generally, Hess v Public Guardian [2005] NSWADTAP 43 at [20] ff. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act. 63 The existence of this obligation was not disputed in this matter. The issue is what was required in order to meet the obligation. What is 'a reasonable opportunity to be heard' will, of course, vary from case to case. In part that is because, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 24It is here alleged that the denial of procedural fairness arose from the constant interruption by the respondent leading to what the appellant perceived to be an unfair time allocation. The hearing was set down for 60 minutes. It ultimately took 90 minutes to dispose of the matter. During that time the appellant alleged that she was afforded 20 minutes to present her case, whilst the respondent took 40 minutes. This, the appellant contends, led to her inability to fully explain to the Tribunal her level of expertise in web design. Had she been able to explain more fully, the Tribunal may have concluded that her opinion should be preferred over that of the expert report tendered by the then applicant. 25The Appeal Panel is not persuaded that this ground of appeal has been established. Whilst a transcript was not provided to the Appeal Panel, the respondent did not cavil with the appellant's assertion as to the allocation of time at first instance. Nevertheless, the appellant was unable to point to any actual as opposed to perceived prejudice caused, accepting for the purposes of analysis that the Respondent spoke for longer than the appellant. The Appeal Panel accepts submissions of counsel for the respondent that it is desirable but not always possible to allow for exactly equal time in contested hearings. Any discrepancy in time allocation does not of itself give rise to prejudice. Here the prejudice is said to arise from the fact that had more time been allowed the appellant could have convinced the Tribunal of her case. In essence she missed, by lack of sufficient time for oral submissions, an opportunity for a favourable result. 26The Appeal Panel does not accept that the appellant has suffered prejudice. The Tribunal at first instance had before him a 90 page document from the appellant, which had been judiciously highlighted and tabbed, giving emphasis to the appellant's submissions. Furthermore, the hearing time was extended to ameliorate the effect of interruptions. In the circumstances there was no breach of procedural fairness and no error of law.

Leave to appeal 27The appellants in any event, seek leave to appeal. The Appeal Panel noted in Bilquip Pty Ltd, Illmat Pty Ltd, Holibass Pty Ltd v Chief Commissioner of State Revenue (NSW) (RD) [2013] NSWADTAP 36 at [38] and [39] that an appellant must demonstrate a sound basis for the grant of leave. This was also referred to by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: 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, 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. 28Furthermore, before granting leave to appeal in an internal appeal from the Consumer and Commercial Division, the Appeal Panel must first consider Schedule 4 of the Act. Clause 12 of Schedule 4 limits the grant of leave to appeal from the Consumer and Commercial Division, to cases where the Appeal Panel is satisfied the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable; or was against the weight of evidence; or as indicated by new evidence not previously before the Tribunal. 29In Collins v Urban the Appeal Panel considered this provision and said at [68], [71], [76] to [79]: 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. ... 71 From this passage, it 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. ... 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 30It is only where the Appeal Panel is satisfied that an appellant may have suffered a serious miscarriage of justice that the Appeal Panel "may" grant leave to appeal in accordance with the principles earlier extracted from [84] of Collins v Urban.

Analysis of leave to appeal 31The appellant contends that the prerequisites for granting leave to appeal are met. The appellant contends that due to: (a)the unfair allocation of time the hearing was not conducted fairly; (b)the conclusion being against the preponderance of evidence; and (c)unavailability of the appellant's expert report, tendered on the appeal; the appellant lost a chance which was fairly open, of achieving a favourable result. 32With respect to item (a), the Appeal Panel has already concluded that there was no material unfairness at the first instance hearing. 33With respect to item (b) the appellant contends that had the evidence been duly considered, there is a possibility that the Tribunal may have concluded differently with respect to competency of the work done. It is the appellant's contention that she provided a completely built and fully functioning website in accordance with the terms of the contract. Any issues as to quality and speed of the website, were created by the Respondent's failure to provide quality photographs and text to replace temporary placeholder content. The appellant contends that she provided a fully functioning website with plug-ins and appropriate domain names, as per the terms of the oral contract between the parties. 34It was apparent from the material tendered before the Tribunal that the respondent herself acknowledged that she had provided insufficient photographs and that the content provided was of a temporary nature. As per the terms of the contract, the respondent understood that it was incumbent upon her to provide a final selection of photographs and text which she failed to do. 35The correspondence tendered before the Tribunal included numerous instructions to "hire a professional to retake the pictures". On several occasions the appellant requested that hundreds of images be sent to allow for a meaningful selection. 36There was no reference to "placeholder" content in the Tribunal's reasons. The Appeal Panel has concluded that it cannot be gleaned from the Decision that the Tribunal apprehended the importance of the distinction between placeholder content and final content, which was explained in the 90 page submission tendered by the appellant below and on appeal. This distinction is relevant to the issue of whether, as ultimately decided by the Tribunal, the website was incompetently prepared. 37With respect to item (b), the appellant also contends, that insofar as it is suggested that her work was incompetent because the website was hosted on the wrong URL or domain name, this was due to the respondent's failure to communicate to the appellant in a timely fashion that leurellaweddings.com was already registered in the respondent's name. This was not communicated to the appellant until 12 months after the contract had been entered into. This was significant considering that a significant complaint against the appellant concerned her alleged failure to provide a more relevant and user friendly URL name. 38The appellant was only informed as late as 12 April 2014 that the relatively user friendly domain name leurellaweddings.com was available for use. This information was provided three days before the deadline unilaterally imposed by respondent. Had the appellant been informed of this earlier, it would have been possible to move the site, placeholder content or not, to a domain name of the respondent's choice. The correspondence concerning the domain name formed an important part of the appellant's evidence and was available to the Tribunal, but was not referred to in the Tribunal's reasons. Had this evidence been applied, the possibility arises that the Tribunal may have concluded differently in relation to the competency of the work done 39With respect to item (c), the appellant tendered the expert report of "Let's Build a Website" without objection. The respondent submitted that the report cannot satisfy schedule 4 clause 12(c) as there is no evidence before the Appeal Panel as to why the report was not available at the time of the hearing. Furthermore, it was contended that the subject matter of the report was the subject of evidence and submissions at the first instance hearing and so is not new, or fresh. 40The appellant, at the hearing of the appeal sought to explain why the report was not previously available. To the extent this explanation was evidence, the respondent was not in a position to answer it and it ought not be admitted at this late stage and to the extent it was submission it did not assist the Appeal Panel. It is in any event of no real moment because it was conceded by the respondent that the report may be taken into account in considering whether the appellant may have suffered a substantial injustice because the decision was not fair and equitable or against the weight of the evidence (see clauses 12(a) and (b)). 41Pursuant to s 80, the Appeal Panel may permit such fresh evidence or evidence in addition to the evidence received by the Tribunal at first instance as it considers appropriate under the circumstances. The report was admitted on that basis and without resistance from the respondent. 42The Appeal Panel has considered the report for the purpose of schedule 4 clauses 12(a) and (b) of the Act. The report states that the website was functioning and ready as at 15 April 2014, but for missing content to be supplied by the respondent. It is at odds with the Tribunal's conclusion that the website was not complete by the relevant date and was in draft only and that the appellant was provided insufficient time to complete the work under the contract. The report concludes that the website was in fact complete at the relevant date and that had the proper content been provided, the website would run smoothly. It supports the appellant's contention that the Tribunal's conclusions were against the preponderance of the evidence (item (b) referred to above). Had the Tribunal appreciated the importance of the content not provided by the now respondent, the conclusion may have differed. The Tribunal may have concluded that but for the respondent's failure to provide content the services rendered by the appellant were completed satisfactorily. In so saying, the Appeal Panel has had the benefit, unavailable to the Tribunal at first instance, of the opinion of "Let's Build a Website", which is in clear and concise terms. 43There is one further issue. The Tribunal held that the order sought for access to the website was consented to by the appellant. This was denied by the appellant at the hearing of the appeal and the respondent did not seek to support the Tribunal's conclusion on this issue. This discrepancy provides further support to the appellant under item (b). 44In light of the foregoing, the decision under appeal can be said to be "against the weight" of the evidence and the Appeal Panel is satisfied that there is a chance, which was fairly open, that a different, more favourable result could have been achieved had that not been the case. 45The Appeal Panel must now turn to the question of whether or not to exercise its discretion to grant leave to appeal under s 80(2) of the Act. In determining this issue, the Appeal Panel has considered the principles to be applied by Collins v Urban at [65]-[84] as set out above. Here, there is a significant chance that there was an error in respect of fundamental aspects of the case. The two significant questions were: (a)Was the website complete at the relevant time; and (b)Was it of poor quality? 46There is a significant chance that the Tribunal misapprehended the position with respect to fundamental aspects of the appellant's case and therefore the warrant for granting leave to appeal is made out. 47The possibility that the Tribunal misapprehended the position potentially affects both orders the subject of the appeal.

Determination of the appeal 48Having granted leave to appeal, the Appeal Panel must consider whether the appeal is to be allowed. 49For the reason that the possible misapprehension by the Tribunal goes to fundamental aspects of the appellant's case, it is appropriate for the appeal to be allowed and the evidence to be reconsidered. 50With respect to Order 1 it became apparent during the hearing of the appeal that there was a significant dispute between the parties as to whether or not the appellant had already provided access to the website to the respondent and if so, whether that was sufficient to give the respondent what she contracted for, assuming that an order for access is ultimately held to be an appropriate order. This was not a matter that could be resolved by the Appeal Panel and may need to be the subject of further evidence. It is therefore appropriate that the matter be remitted for consideration by the Tribunal.

Conclusion 51In the circumstances leave to appeal is granted and the appeal is allowed.

Orders 52The Appeal Panel makes the following orders: (1)Leave to appeal granted and appeal allowed. (2)Set aside orders 1 and 4 made on 3 March 2014. (3)Remit the matter to the Tribunal similarly constituted to be reconsidered. (4)The appellant and respondent to file and serve all evidence they wish to rely upon, on or before 3 December 2014. (5)No order as to costs. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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

Amendments 01 March 2016 - Anonymisation of party 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: 01 March 2016

Consumer Claims Act 1998(NSW)

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