Khashashneh v Travel Compensation Fund

NCAT Appeal Panel|2015-06-22

Introduction

Mr Khashashneh and his wife Bara'ah Zulghena claim that they paid a travel agency, Pack N Go Travel, $12,300 in cash for international flights for themselves and their family but that the travel agency went out of business and the flights were never booked. Mr Khashashneh applied to the Travel Compensation Fund for compensation but his claim was refused. He then applied to the Consumer and Commercial Division of the Tribunal. At a hearing on 3 March 2015 the Tribunal refused Mr Khashashneh's application for an adjournment and dismissed his claim. Mr Khashashneh and Bara'ah Zulghena have appealed from those decisions on a question of law and on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
We have found that the Tribunal did not conduct a fair hearing because: firstly, the Member did not give Mr Khashashneh a reasonable opportunity to present his case and secondly, the Member pre-judged the matter on the basis of an incorrect view of the law.
Both parties agreed that in those circumstances it was appropriate for the Appeal Panel to deal with the matter by way of a new hearing and to permit fresh evidence: NCAT Act, s 80(3). Following that hearing we have upheld the claim of Mr Khashashneh and his wife and ordered that the Travel Compensation Fund pay them $12,300. For convenience we will refer only to Mr Khashashneh in the remainder of these reasons, even though the claim was made by both Mr Khashashneh and Bara'ah Zulghena.

The hearing before the Tribunal below

The Notice of Hearing before the Tribunal shows that the matter was listed in what is known as a "group list" for "Conciliation and Hearing". The format for these hearings is that several matters are listed at the same time and the parties are given an opportunity to negotiate a settlement. If the matter does not settle, the Tribunal may make directions for the parties to file documents in preparation for a hearing. In some cases, including the present case, unresolved matters are heard on the same day.
Two transcripts and an audio recording of the proceedings were before the Appeal Panel. One transcript was provided by the Tribunal following a request from the Travel Compensation Fund, the other was produced by the Travel Compensation Fund. The second version contains dialogue which is not re-produced in the first version. Given these discrepancies, we have relied on the audio recording of the proceedings.
The Member called through the list and explained the process of conciliation to all the parties. Before Mr Khashashneh left the hearing room, the Member asked him some questions about the fact that he had paid for the travel in cash. The Member said that in the absence of bank statements proving that the money had been withdrawn, he would lose. The parties then attempted to resolve the matter but were unsuccessful. When they returned to the hearing room Mr Khashashneh applied for an adjournment. Before deciding that application the Member commenced to hear the matter by asking questions of both Mr Wells, representing the Travel Compensation Fund, and Mr Khashashneh. The Tribunal then refused the application for an adjournment and dismissed the application for compensation.
The Member provided the following written reasons for his decision: This is an application. Both parties appeared and the application for an adjournment and the substantive claim was opposed. The applicant has the onus of proving his case on the balance of probabilities. There was no evidence which might support the claim, particularly, the sum claimed was for airfares paid by cash, but the applicant has no receipt from the travel agent, and there were no bank account statements showing the sums. The applicant's explanation for the former is that he has lost the receipt and for the latter is that he didn't realise he had to bring bank statements to prove where the cash came from. He also says that as a small businessman he had cash in his business from time to time which he used to pay the travel agent. The applicant is a businessman and I find his explanations wholly unconvincing and without merit. The applicant had already had his application refused by the respondent due to the absence of evidence. He must have known that he was required to provide evidence to prove his claim today. The applicant's evidence is that the documents to prove his case either can't be found (the receipt) and the fares were paid for in cash from his business so that there will be no evidence of any bank statements. I find the explanations lack merit, fall a long way short of proving the claim, and in my opinion the defects cannot be remedied by an adjournment. On this analysis the application has no prospects and the application for an adjournment should be refused.

Grounds of Appeal

Because Mr Khashashneh is appealing against a final decision to dismiss his claim, he has the right to appeal on a question of law: NCAT Act, s 80(2)(b). The grounds of appeal, as set out in the Notice of Appeal, were that: 1. as [it was my] first time at the Tribunal I didn't get a fair chance to prove my case and was not given time to show evidence; 2. I was mistreated and I was not given a fair go by the Tribunal Member and I was laughed at by the Tribunal Member and respondent; 3. I didn't know that I needed to bring a bank statement and not to be allowed to go and get it on the same day or later to be able to prove my case and was treated like I am the respondent; 4. Travel Compensation Fund has my original receipt and did not show in my case file.
Mr Khashashneh also applied for leave to appeal on three grounds other than questions of law. Under s 80(2)(b) the Appeal Panel may grant leave to appeal if 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 the proceedings under appeal were being dealt with): NCAT Act, Sch 4 Cl 12.
Mr Khashashneh sought leave under those provisions on the basis that: 1. the decision was not fair and equitable because he has no experience or knowledge of Tribunal hearings and things went the wrong way in relation to the evidence. He added that he did not understand exactly what was going on. 2. the decision was against the weight of the evidence because he thought that the only evidence he needed was the receipt from the travel agency and flight print details which he had already given to the respondent and assumed had been passed on to the Tribunal; and 3. there was new evidence now available that was not reasonably available at the time of the hearing, namely the bank statements.
The Tribunal has a duty to ensure that the hearing before it is fair and, in particular, that a self-represented party is not disadvantaged because he or she does not have a lawyer: Hamod v New South Wales [2011] NSWCA 375 at [309] - [316]. That duty extends, in appropriate cases, to identifying a question of law, even where the appellant has not articulated that question: Tomasevic v Travaglini [2007] VSC 337 at [141]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 at [12]; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. In doing so, the appellate body must also ensure that it remains impartial and that the respondent knows the case against it and has a reasonable opportunity to respond: Hamod v New South Wales [2011] NSWCA 375.
With these principles in mind, the Appeal Panel gave the Travel Compensation Fund the opportunity to make submissions as to whether the following questions of law arise from the Tribunal's decision: 1. whether the Member demonstrated actual or apprehended bias; 2. whether the Member complied with the duty to conduct a fair hearing by giving Mr Khashashneh a reasonable opportunity to be heard; and 3. whether the Member wrongly refused the application for adjournment.

Actual or apprehended bias

The Member began by calling each matter in the group list and explaining the process of conciliation to all the parties. Before Mr Khashashneh left the hearing room, the Member asked him, in the presence of Mr Wells representing the Travel Compensation Fund, what sort of work he did. Mr Khashashneh replied that he ran a small business. The Member then told Mr Khashashneh that normally a bank statement is required to show that the cash has been withdrawn from a bank. The Member went on to say: Member: A cash transaction is probably designed to defeat the law … which means that you're acting illegally. I'm not saying you are, but that's an indication of illegal conduct which means you can't come to a court or a tribunal and seek a remedy because if you haven't got clean hands you're in serious trouble. … Member: You're claiming over $12,000; you made a cash transaction; you've got no evidence to prove the cash transaction; the matter's going to be dealt with today … I can tell you, in the absence of any evidence that you paid this money, you're going to lose. All right?
In a similar vein, the Member later said: Member: Well, you know, if you have got large sums of cash at home and you're running a business, there's an inference that you're not paying tax on it. Of course most people bank their money and they have business records to show that they're making tax declarations. Applicant: I do pay all my taxes. Member: yeah well, I don't draw any conclusions but I'm just saying there's a weakness that you're -there's a strong suspicion that you've got difficulties.
It is a fundamental principle of procedural fairness that a member of the Tribunal must be, and must be seen to be, impartial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 501. The test is an objective one. A Tribunal Member should not hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 the High Court held that the question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality requires two steps. The first is to identify what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. The second requires the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
In this case it was the Member's incorrect understanding of the law that led him to decide this case otherwise than on its merits. The Member singled out Mr Khashashneh to ask him what kind of work he did before he left the hearing room to attempt to resolve his claim. When he heard that Mr Khashashneh ran a small business he queried whether he had been avoiding tax by being paid in cash and suggested that he was in 'serious trouble' if that was the case. The Member also said that Mr Khashashneh would lose "in the absence of any evidence that you paid this money", suggesting that a receipt was necessary.
The overall impression that the Member gave was that Mr Khashashneh was going to lose his case if he could not produce bank statements proving that he had withdrawn the cash from a bank account to pay the travel agent. That is how Mr Khashashneh interpreted his words because he immediately asked for an adjournment to obtain those bank statements.
The Member's insistence that Mr Khashashneh needed bank statements to prove his case was incorrect as a matter of law. The relevant law, which is summarised at [25] to [30] below, is that to be awarded compensation, an applicant must have entered into travel arrangements directly or indirectly with a travel agency and must have suffered a direct pecuniary loss arising from a failure to account by the travel agency. An applicant does not need to establish that cash was withdrawn from a bank account in order to prove that money was paid. The Member's misunderstanding of the law led him to pre-judge the outcome. The decision should be set aside because of apprehended bias.

Reasonable opportunity to be heard

When Mr Khashashneh requested an adjournment, the Member began asking Mr Wells and Mr Khashashneh some questions. Without ruling on the application for an adjournment at that stage, the Member apparently looked at the file and asked Mr Wells about the closure of the compensation scheme. Having satisfied himself that the Tribunal had jurisdiction, the Member then asked Mr Khashashneh about the dates he had booked with the travel agency and when he had travelled. After the Member established that Mr Khashashneh had paid in cash but no ticket had been issued, the following exchange occurred: Applicant: We paid a deposit. Member: Well, I don't understand. Mr Wells: There's no receipt. Applicant: He gave me a receipt. Member: Where's the receipt? Applicant: I could not retrieve it because at home everything is missing. Member: Sir, I'm going to refuse your application for an adjournment because your case has no prospects of success. Your claim is dismissed.
The Tribunal may inform itself in any way it thinks fit, subject to the rules of natural justice, otherwise known as the rules of procedural fairness: NCAT Act, s 38(2). In particular, 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 have a reasonable opportunity to be heard …":NCAT Act, s 38(5). These principles reflect, in statutory provisions, the common law requirement for a fair hearing; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5; Cheung v Yang [2013] NSWSC 1694 at [75].
Mr Khashashneh, a self-represented litigant from a non-English speaking background, said that he had never appeared before a tribunal. In his words, he "did not understand exactly what was going on." In those circumstances the Tribunal must explain the procedure to be followed and the correct legal principles that apply. That did not happen in this case. Instead, the Member told Mr Khashashneh that he was required to produce bank statements demonstrating that he had withdrawn the cash from a bank. The Tribunal did not tell Mr Khashashneh that a receipt recording Mr Khashashneh's payment of $12,300 to the travel agent would provide probative evidence in support of his claim. The possibility that a receipt existed was not mentioned until Mr Wells said, from the bar table, that "[T]here's no receipt" Mr Khashashneh's evidence contradicted that assertion. He said, "He gave me a receipt." When the Tribunal Member asked Mr Khashashneh where the receipt was, he said he could not retrieve it.
Mr Khashashneh told the Appeal Panel that he had given the original receipt to the Travel Compensation Fund when he made the claim. Mr Moss, representing the Travel Compensation Fund on appeal, produced the original receipt in the appeal proceedings. Neither the existence of the receipt nor the fact that Mr Khashashneh had given it to the Travel Compensation Fund came to light during the hearing before the Tribunal.
In our view the Tribunal should have taken more time to obtain oral evidence from Mr Khashashneh as to the circumstances of his claim. Instead, the hearing was carried out in a hurried and unstructured fashion by asking Mr Wells and Mr Khashashneh a few questions and then peremptorily dismissing the application.

Refusal of application for adjournment

Before the parties left to attempt conciliation, Mr Khashashneh applied for an adjournment. The Member said that if Mr Khashashneh needed a short time to arrange for the bank statements to be faxed to the Tribunal he would consider giving him that time but added that, "I think you're in serious trouble." Mr Khashashneh then said, "How about 2-3 hours?" The Member replied, "I don't think so."
Mr Khashashneh and Mr Wells returned to the hearing room after their failed attempt to settle the matter. Mr Khashashneh renewed his application for an adjournment and Mr Wells opposed that application. When the Member asked Mr Khashashneh why he needed an adjournment, he said it was because he had moved house about seven months ago and he had just come back from overseas on Friday. He added that he has six children, five of whom go to school, and that he has been running around preparing for the first day of school which was yesterday.
In Aea Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal and Ors [2014] NSWSC 911 at [58] - [59] the Supreme Court set out the principles applicable in Tribunal proceedings when considering an application for an adjournment: [58] The Tribunal has discretion to grant an adjournment when it is sought. Where an adjournment is refused, an appellate court will not intervene unless it is shown that the Tribunal has not exercised the discretion judicially or where its exercise was based upon wrong principle or was plainly unjust. It is not enough that the appellate court would have granted the adjournment if the court had been in the position of the Tribunal: House v R (1936) 55 CLR 499; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 per Kirby P at 252; Sullivan v Department of Transport (1978) 20 ALR 325 per Deane J at 342. [59] The decision to grant an adjournment involves the careful balancing of different factors which include not only the competing interests of the litigants in the case, but also the effect of an adjournment on court resources and the importance to the proper working of the Tribunal's case management system of adherence to the Tribunal's directions and dates fixed for hearing.
There should have been no need for Mr Khashashneh to apply for an adjournment. The basis for that application was the incorrect information that the Member gave to him as to the need for bank statements to prove his case. That conclusion and our findings that the Tribunal did not give Mr Khashashneh a fair hearing, make it unnecessary to determine whether the Tribunal erred in refusing to grant an adjournment.
Having upheld Mr Khashashneh's appeal on questions of law, there is no need to consider whether leave should be granted for the appeal to proceed on grounds other than questions of law. The remainder of this decision relates to the new hearing conducted by the Appeal Panel: NCAT Act, s 80(3).

Law to be applied

The Travel Compensation Fund is a trust that was established in 1986 by certain State and Territory Ministers for Consumer Affairs. Its purpose was to compensate consumers who had lost money through the failure of travel agencies that were participants in the scheme. The Trust is regulated by a Trust Deed. Under s 57(2) of the Travel Agents Act 1986 (NSW) (repealed) the Governor may make regulations prescribing a scheme for compensating persons who suffer a pecuniary loss by reason of an act or omission by a person who carries on, or carried on, business as a travel agent. The Trust Deed is prescribed and is reproduced in Schedule 1 to the Travel Agents Regulation 2011.
Under cl 15.1 of Schedule 1, the Travel Compensation Board of Trustees must pay compensation out of the Fund in accordance with the terms of the Deed to a person who: 1. enters into travel arrangements or travel-related arrangements directly or indirectly with a participant, and 2. has suffered or may suffer direct pecuniary loss arising from a failure to account by the participant and the failure to account arises from an act or omission by the participant or an employee or agent of the participant, and 3. is not protected against the direct pecuniary loss by a policy of insurance.
The Board of Trustees may admit a claim in whole or in part, or reject a claim and is to notify the person who made the claim of its decision and the right of appeal: cl 16.6 and 16.7.
Under cl 19.1(d), a person may appeal to the Tribunal against a decision of the Board under clause 16.7 that relates to any compensation referred to in clause 15.1.
Despite the repeal of the Travel Agents Act (repealed), a right of appeal to the Tribunal continues to apply with respect to appeals against decisions of the administrators of the compensation scheme, and with respect to the determining of any such appeal, in accordance with the compensation scheme: Fair Trading Act 1987, Sch 5, cl 22.

Evidence

Mr Khashashneh gave evidence that in late 2013 he decided to travel to Jordan with his wife and six children. He provided a bank statement which records that he withdrew a total of $11,000 (one withdrawal of $7,000 and two of $2,000) on 24 October 2013. He went to see Mr Taha Baghdadi of Pack N Go Travel. Mr Khashashneh said Mr Baghdadi asked for cash and that he gave him $5,000 deposit in cash on 30 October 2013. Mr Khashashneh provided a signed receipt for $5,000 from Pack N Go Travel 'as a deposit for family travel tickets'.
Around 2 November 2013 Mr Khashashneh went to the travel agency again and told them that he had changed his mind about travelling in 2013 and had decided to postpone the trip until the end of 2014. Mr Baghdadi kept the $5,000 deposit but told Mr Khashashneh that he could not re-book the flight until January 2014.
On 31 March 2014, at Mr Khashashneh's request, the travel agency "booked" flights for Mr Khashashneh and his family with Malaysian Airlines for travel in November 2014. Mr Khashashneh understood that as he had not paid in full, the booking was not confirmed.
In April 2014 Mr Khashashneh spoke to a representative from the travel agency saying that he was not comfortable travelling with Malaysian Airlines and that he wanted to fly with Emirates.
The Travel Compensation Fund tendered several emails from its Claims Manager, Mr Rex Carroll, about Mr Khashashneh's claim. The emails appear to be addressed to representatives at Malaysian Airlines and Emirates. The emails suggest that there were, in total, 12 bookings created for Mr Khashashneh and his family but that they were cancelled due to non-ticketing. According to the Travel Compensation Fund, these emails prove that despite Mr Khashashneh's evidence, he did not purchase tickets for travel with Emirates in May 2014. Mr Khashashneh acknowledged that he changed the bookings several times and that a final booking was never made but says that that the travel agency continued to hold their money.
Later in April 2014, Mr Khashashneh said he withdrew $4,000 from his bank account. He provided a bank statement showing that $4,000 was withdrawn from his joint account with his wife on 26 April 2014.
On 20 May 2014, while Mr Khashashneh was overseas, he says he asked his wife to go to the travel agency and pay the balance of the air fares. Mr Khashashneh provided the original receipt for that payment to the Travel Compensation Fund when he made his claim. The receipt, dated 20 May 2014, is on Pack N Go letter head, bears a stamp from Pack N Go Travel, but is not signed. It states that $12,300 had been received from Mr Khashashneh for a family trip to Amman and Europe. According to Mr Khashashneh, a representative from the travel agency requested payment in cash because they did not have credit card facilities and he did not know how to transfer money via the internet.
The Travel Compensation Fund submits that because Mr Khashashneh admits that he did not pay the travel agency $12,300 on 20 May 2014, the receipt does not prove his claim. Mr Moss, on behalf of the Fund, also submits that the withdrawal of money from Mr Khashashneh's joint bank account with his wife does not prove that money was paid to the travel agent. Finally he says that the receipt should not be given any weight because it does not record that the money was paid in cash.
Mr Khashashneh conceded that his wife had paid the money, not him, despite the fact that the receipt records that the payment was from Mr Khashashneh.
The Travel Compensation Fund submitted that the Tribunal should draw an adverse inference from the fact that Mr Khashashneh's wife did not attend and give evidence when she was available to do so: Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298. Mr Khashashneh's response was that he saw no need for his wife to give evidence and that in Middle Eastern culture, the mother is the most valuable person in the family. It is his responsibility, as the husband, to manage the financial matters.
Mr Khashashneh also agrees that the amount paid on 20 May 2014 was $7,300, not $12,300. Mr Khashashneh explained that the receipt was issued for the full amount ($5,000 deposit plus $7,300) because he could not find the receipt for the $5,000. Mr Khashashneh accepts that the receipt does not state that the amount was paid in cash but attributes no significance to that omission.
Following payment, Mr Khashashneh received an itinerary for travel on 19 November 2014. Despite attempting to contact the travel agency several times, Mr Khashashneh states that he was not able to speak to Mr Baghdadi from Pack N Go Travel. In August 2014: he logged into Emirates' internet site to find his booking and saw the following message "Note: no ticket purchased, see your travel agent." Mr Khashashneh finally spoke to a representative from the travel agency who told him that they had not purchased the tickets.
Mr Khashashneh confirmed that he did not receive any tickets for flights in November 2014. He made a claim to the Travel Compensation Fund, but that claim was rejected.

Findings

The issues of fact are whether Mr Khashashneh entered into travel arrangements directly with Pack N Go Travel and, if so, whether he has suffered direct pecuniary loss arising from a failure to account by the travel agency. It is not in dispute that if Mr Khashashneh did enter into those arrangements he suffered a financial loss. That loss arose from the fact that Pack N Go Travel ceased trading.
The evidence that supports Mr Khashashneh's contention that he suffered a direct pecuniary loss is firstly his statements and oral evidence and secondly the documentary evidence comprising receipts and bank statements. For the reasons which we give above, the bank statements are of no probative value.
Mr Khashashneh's statements and his oral evidence support a finding that he paid a deposit of $5,000 and that he asked his wife to pay a further $7,300 on 20 May 2014 because he was overseas. The Travel Compensation Fund produced the original receipt that Mr Khashashneh had provided to support his claim showing that $12,300 had been received by the travel agency on 20 May 2014.
The Travel Compensation Fund did not question the reliability of Mr Khashashneh's account of what had happened. Their main point was that the receipt did not reflect what Mr Khashashneh said happened on 20 May 2014. His evidence included an assertion that Mr Khashashneh's wife had paid $7,300 on 20 May 2014.
The rule in Jones v Dunkell is that in circumstances where a party could be expected to bring evidence of a matter, failure to do so without explanation will entitle a decision maker to proceed on the basis that the evidence would not have assisted the party concerned. Mr Khashashneh has explained that he did not think it necessary to call his wife to give evidence and in Middle Eastern culture, the mother is the most valuable person in the family. It is his responsibility as the husband, to manage the financial matters.
While the evidence as to the payment of the money on 20 May 2015 would have been more probative had it been given by Bara'ah Zulghena herself, we accept Mr Khashashneh's explanation for her non-attendance. We are not satisfied that we should draw a Jones v Dunkel inference.
The most critical piece of documentary evidence is the receipt for $12,300. We are satisfied that that receipt is genuine despite the fact that it was not signed. The Travel Compensation Fund did not lead any evidence or make any submissions to the contrary. Mr Khashashneh is not to blame for the fact that Pack N Go did not write "for cash" on the receipt, that the receipt named him, rather than his wife, that the amount recorded was $12,300 rather than $7,300 or that it was not signed. Mr Khashashneh provided a credible explanation for those matters in his statement or during cross-examination. Indeed, Mr Khashashneh gave evidence that was against his own interests when he said that the $12,300 included the amount of $5,000 which he had previously paid.

Orders 1. The decision under appeal is quashed and the following decision is substituted for that decision: 1. The Travel Compensation Fund is to pay Mr Khashashneh $12,300. 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 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: 15 July 2015

Consumer Claims Act 1998(NSW)

Travel Agents Act 1986(NSW)

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