Lettau v Artwork Transport Pty Ltd

The Tribunal's Findings

1. As we have stated above, the Tribunal dismissed the application because it was not satisfied that the appellant had discharged her onus to prove the grounds required to make out her claim. After summarising the facts above, the reasons for the Tribunal making that decision were as follows: "The applicant claims that the respondent breached the agreement with her or did not perform the services with due care and skill because they did not contact her for further instructions when they found the artworks already wrapped upon collection, they did not properly wrap (or rewrap) the works and the artworks were damaged in the course of being transported to Mayfield. She claims compensation of $7051.38, being the cost to reprint the damage works and have them delivered to her address in Mayfield. The applicant bears the onus of proving, on the balance of probabilities,that the elements of her claim are made out. That includes: that the respondent breached the agreement with her or did not perform the services with due care and skill, she has suffered loss or damage as a result, and what a reasonable amount of compensation would be to compensate her for that loss or damage. The applicant submitted that the respondent should not have proceeded without contacting her first when it arrived at the gallery to find the words already wrapped. However, the applicant had authorised the gallery to act on her behalf, as agent, with the respondent in relation to the collection of the goods, and I consider the respondent was entitled to collect the goods presented to it by the gallery on the applicant's behalf without contacting her for further instruction. It is not necessary for me to determine whether the respondent breached the agreement with the applicant or did not perform the services with due care and skill, for the following reason. No evidence is before me as to the condition of the works when they were delivered into the possession of the respondent. The applicant had not seen the works since three days earlier, when they were hanging in the gallery. In the intervening period, they had been taken down from the walls and wrapped in bubble wrap. The works were wrapped in bubble wrap when seen by the respondent's employees and so they were not aware of the condition of the works at that time. On the applicant's evidence, the works needed to be treated with great care. There is no evidence before me as to the degree of care that was taken in taking down works and as to whether or not that was done in a professional manner. In the circumstances, it is possible that the damage to the works occurred during the period they were taken down from the walls in the gallery, wrapped and stored until collected by the respondent. In these circumstances, even if the respondent breached the agreement with the applicant or did not perform the services with due care and skill (which I do not need to decide), I am not satisfied that the applicant has suffered any loss or damage as a result of the respondent's conduct. That is because there is a real prospect that the works already damaged when they were collected by the respondent. It follows that the application is dismissed."

The Notice of Appeal

1. The appellant asserts that the following four matters arise from the Tribunal's decision, each of which raises a question of law such that no leave to appeal is required: 1. What is the onus of proof borne by a bailee? Specifically, did the Tribunal err in law in failing to apply this onus on the bailee/carrier to negate negligence in the transport of the artworks? 2. If the onus of proof is on a bailee, did the Tribunal correctly apply the standard of proof? 3. Did the Tribunal err in its determination of the existence or scope of any agency of the gallery? 4. Did the Tribunal err in law in failing to deal properly with the evidence?
2. In our opinion, the appellant is correct in asserting that the matters raised by the Notice of Appeal, raise questions of law (see the discussion in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. As such, leave to appeal is not required (see Civil and Administrative Tribunal Act, 2013, (the CAT Act) s 80(20(b)).

The appellant

1. The appellant referred to and relied, or sought to rely, on the following material: 1. The Reasons of the Tribunal; 2. The Lettau submissions put before the Tribunal; 3. A bundle of documents and statements which were before the Tribunal; 4. The respondent's submissions put before the Tribunal; 5. A statutory declaration of Mr. Patterson, declared on 26 October 2016 (this was not before the Tribunal and we will return to this below); 6. Documentation attached to Mr. Patterson's statutory declaration (we will return to this below); 7. Excerpts of the transcript of the hearing before the Tribunal; 8. Statement of Julie Tailor (this was not before the Tribunal and we will return to this below); 9. A statutory declaration of Mr. Andrew Leslie declared 3 November 2016 (this was not before the Tribunal and we will return to this below); 10. Statement of Milan Lettau; 11. A bundle of photos numbered 1- 37; and 12. Submissions on Appeal.
2. The material in e, f, h and i above is material that was not before the Tribunal. The appellant accepted that this material was new evidence and that leave of the Appeal Panel to rely on the material was required.
3. Section 80(3)(a) of the CAT ACT provides that the Appeal Panel may decide to deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing. By reason of s 80(3)(b) of the CAT ACT, in such circumstances the Appeal Panel may permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
4. No submissions were made that the grounds of appeal required a new hearing. Even if such submissions had been made, we do not think that the grounds of appeal raise issues that warrant a new hearing, nor that we would necessarily allow each party to lead new or different evidence on the appeal to that put before the Tribunal. The grounds of appeal deal with the material that was before the Tribunal and allege errors of law arising from the way the Tribunal dealt with that evidence, the decision it reached and the reasons for that decision.
5. As the appeal is not by way of a new hearing, it is important to understand the nature of the appeal. That is important because it bears upon the question of whether the appellant can rely on the new evidence she seeks to put before the Appeal Panel. There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of new evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]). We respectfully adopt that analysis. As such, having regard to the guiding principles under s 36 of the CAT Act, the appeal in this case (which is not to be by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate.
6. The question then becomes whether it is appropriate to receive the new evidence. We have formed the view that the grounds of appeal raise questions of law. Leave to appeal is not required. As the Appeal Panel in Yuen v Thom discussed, appeals on questions of law rarely warrant the receipt of new evidence. At [20]-[21] the Appeal Panel said: 20 An appeal on a question of law would rarely warrant the receipt of new evidence. There may nevertheless be circumstances where the particular question of law warrants the receipt of additional evidence to prove the error. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13], in the context of an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975, it was stated that it is generally inapposite to receive new evidence on an appeal on a question of law. However, an exception may be made where the evidence is necessary to prove the circumstances to prove a breach of procedural fairness; and so, the receipt of evidence that was not before the decision maker may be appropriate (such as evidence that a hearing notice was not received: see, for example, Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129). 21 This case constitutes another exception. Here the question of law (if it be a question of law) is whether the Tribunal had jurisdiction to make the consent order. That question turns, in part, on the existence or not of an agreement and the relevant evidence must logically include evidence, not necessarily before the original decision maker, that goes to whether or not there was an agreement. To the extent that this is an appeal by leave on the basis that the decision was not fair or equitable, in the sense that it would not have been made had the matter gone to a contested hearing, it also warrants the receipt of the evidence going to whether or not there was an agreement.
7. In this case none of the exceptions referred to above apply. The appellant here complains that the Tribunal erred in law in its application of the legal questions of the nature of the onus of proof in bailment cases, its conclusions as to agency and its conclusions generally based on the evidence before it. There is no allegation of procedural unfairness or jurisdictional error. The appellant does not cavil with any of the factual findings made by the Tribunal on the evidence before it. In our opinion, therefore, there must be some other persuasive reason or reasons why the general principle that new evidence is not generally warranted in appeals dealing with questions of law should not be applied.
8. The appellant, ably represented by her son, Mr Paris Lettau at the hearing, frankly conceded that if there was a gap in the evidence she had put before the Tribunal in respect to the condition of the paintings on collection (as there plainly was), that is because she had received legal advice that as bailee of the goods on collection, the respondent bore the onus of proof to show that any damage to the artworks was not caused by its negligence or default. Mr Lettau said that the appellant understood the effect of this advice to mean that she did not have to prove anything in respect to the liability of the respondent who bore the onus "as a whole". It was in this context, so it was said, that the evidence now sought to be relied upon, was not placed before the Tribunal. That is, the manner in which the appellant ran the matter before the Tribunal was guided, at least in respect to the evidence she sought to put before the Tribunal, on legal advice she had obtained. Whilst she was not legally represented at the hearing before the Tribunal, it is clear from Mr Lettau's submissions on appeal, and from other material before the Appeal Panel including correspondence from the appellant's solicitors to the respondent, that she was receiving legal advice. In that sense there was a forensic decision made by the appellant (based upon the advice she had received) as to how she ran the case before the Tribunal. It is only now she has lost that she seeks to revisit that decision.
9. Whilst it is true that in bailment cases the bailee has the onus to prove that any damage to the bailed goods was not caused by its negligence or actions, the bailor bears the onus to prove the condition of the goods on delivery to the bailee, including that the goods were not damaged (see the authorities discussed at [40]-[43] below). The fact that the appellant had received advice to the contrary, or perhaps misunderstood the effect of the advice she was given, and therefore chose not adduce evidence she could have, is not without more, a sufficient reason to allow her to lead that evidence, as new evidence, on appeal.
10. We regard as relevant to the discretion of the Appeal Panel to receive new evidence on the appeal (which is not by way of a new hearing), a consideration of whether that evidence was available at the time of the hearing and, if so, why it was not relied on. Other factors that may be relevant include whether it is likely that the new evidence would have produced a different result at the Tribunal (see: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26] to [28]; Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217) and any prejudice caused to the other party if the new evidence was received. There may be other matters which are also relevant to that discretion.
11. In respect to the Mr Patterson's statutory declaration and attachments and Ms Tailor's statement, no explanation was offered as to why this evidence was not led at the hearing. Nor was it suggested that the evidence was not available at the hearing.
12. In respect to Mr Leslie's statutory declaration, the appellant submitted that this material was not reasonably available at the time of the hearing as Mr Leslie was overseas when the hearing occurred. However, the appellant accepted that there had been directions made some time ago for the service of evidence to be relied upon and she could not show that Mr Leslie was overseas or unavailable so as to be unable to provide the statutory declaration such that it could have been served in accordance with those directions or at some other time before the hearing. Absent such evidence, we do not accept that this evidence was not reasonably available at the time of the hearing.
13. If the new evidence of Mr Patterson, Ms Tailor and Mr Leslie had been received, inevitably there would have been some prejudice to the respondent. It would have needed to deal with that evidence. Whilst it may have sought to put on additional evidence to do so, it would have lost the opportunity to test that evidence by cross-examination, if that had been appropriate. Whilst in this case the respondent did seek to put on additional evidence, which at least in part sought to deal with the appellant's new evidence, it ought not have to meet the new evidence in these circumstances. That is particularly so where, as here, the nature of the grounds of appeal concern errors in the Tribunal's reasons said to arise from the evidence that was before it. If the grounds of appeal had, for example, raised matters going to errors in the factual findings of the Tribunal or other matters which may have made it appropriate for the appeal to be dealt with by way of a new hearing, different considerations may have applied as to whether the new evidence should be received. Of course, if leave to appeal was required and one of the bases for leave was that there now existed significant new evidence which was not reasonably available at the time of the hearing, consideration of the authorities dealing with the application of cl 12(1) (c) of Sch 4 of the CAT Act would have been required. For the reasons identified, however, those considerations do not arise in this appeal.
14. From the appellant's submissions on this issue, it is apparent that the real reason she had not pursued Mr Leslie for this evidence before the hearing or relied on the other new material was that they had relied on the legal advice, at least as they understood it, that we have referred to in [26] above. The appellant did not think, therefore, she was required to adduce any evidence as to the condition of the works when they were collected by the respondent. In our opinion, in circumstances where the appeal raises questions of law alleging errors in the conclusions of the Tribunal based upon the evidence that was before it (and is not a therefore new hearing) and where the new evidence that the appellant wishes to rely on could have been led at the Tribunal hearing but was not by reason of reliance on legal advice, the appellant should not be entitled to rely on the new material.
15. Having considered the new material sought to be relied upon, and having regard to the factors outlined above, we rejected the appellant's application to rely on the new evidence.

The respondent

1. The respondent sought to rely on a bundle of material attached to the Reply to Appeal. That material contained the evidence relied upon by the respondent in the Tribunal together with new evidence.
2. The material was: 1. The original application made by the appellant to the Tribunal and the Tribunal's reasons; 2. A statutory declaration of Mr. Jamie Hodgson, the National Operations Manager of the respondent, declared on 25 November 2016 (this was new material and we will return to it below); 3. Statement of Mr. Hodgson; 4. Statutory Declaration of Mr. Adam Barratt, an employee of the respondent and the driver who collected the artworks, declared on 25 November 2016 (this was new material and we will return to it below); 5. Statement of Mr. Barratt; 6. Statement of Mr. Thomas Elliott, NSW Branch Manager of the respondent; 7. Photos of packing material used for transporting artworks; 8. Emails between the respondent and appellant; 9. The consignment note; and 10. The respondent's standard terms and conditions.
3. The respondent accepted that the statutory declarations of Mr Hodgson and Mr Barratt of 25 November 2016 were new evidence. Most, but not all, of that new evidence was purportedly in reply to the new evidence sought to be tendered by the appellant. In so far as it was reply evidence, as we have rejected the appellant's new evidence, there is no need to receive this evidence.
4. In so far as the new evidence contained fresh material, each of Mr Hodgson and Mr Barratt had already prepared statements which were before the Tribunal. The new statutory declarations contained material which expanded upon those statements. Plainly, all of the evidence sought to be adduced in those new statutory declarations was available to be deployed at the hearing and there was no explanation as to why it was not.
5. In the circumstances, we rejected the application to rely on that material as evidence. We allowed Mr Hodgson's statutory declaration to be treated as the respondent's submissions on appeal but did not receive it to prove the truth of the assertions made in it.

Grounds 1 and 2: the onus of proof and the application of the correct standard of proof by the Tribunal

1. The appellant argued the Tribunal erred in law because it did not apply the correct onus of proof. The appellant argued that in cases of bailment for reward the bailee bears the onus to prove that the loss and damage was not caused by the bailee's negligence. The appellant submitted that in this case "the entire onus" was placed on the bailee and the Tribunal erred in not concluding that the respondent bore the onus to prove that when the artworks were collected by the it, they were already damaged or, if not, they did not cause the damage evident on delivery.
2. It is helpful at this point to consider some relevant principles with respect to bailment. It can be accepted that, in this case, the respondent was a bailee for reward (see: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 237-238 per Windeyer J). As a bailee for reward: "[t]he obligation of a carrier as bailee is to exercise due care, skill and diligence for the safety of chattels entrusted to him. If he fails to deliver them safely at the end of the bailment, that is evidence of a failure to perform his duty to exercise due care of them. He can rebut this by shewing that their loss or damage was not the result of any default on his part. But to escape liability he must establish that. The burden lies on him… Hobbs v Petersham Transport Co Pty Ltd , ibid at p. 240 per Windeyer J.
3. The standard of care is that "that which a careful and vigilant man would exercise in respect of goods of his own of the same kind in similar circumstances": Hobbs v Petersham Transport Co Pty Ltd, ibid at 238.
4. This principle, and the duty of care on a bailee, does not mean that the bailee has as the appellant phrased it the "entire onus". That is, there must be proof by the bailor of the condition of the goods at the time of delivery to the bailee. In Larsen v Grace Worldwide (Australia) Pty Ltd [No 2] [2015] NSWSC 1224, Schmidt J dealt with a case where the plaintiffs had entered into a contract with the defendant to transport their goods from NSW to Germany. The plaintiffs alleged that on delivery, there were toxic substances on some of the furniture, in breach of the contract of bailment, which caused them personal injuries. There were several causes of action dealt with by her Honour in the proceedings. On the question of onus, her Honour noted (at [58]) that the plaintiffs bore the onus to prove all the elements of their case, including that the toxic substances were placed on their goods after delivery to the defendant or whilst in its custody as bailee. Her Honour held (at [72]-[78]) that the evidence led by the plaintiffs did not establish this. For that reason (amongst others), the plaintiffs' claim failed.
5. The decision of her Honour was affirmed in the Court of Appeal: Larsen v Grace Worldwide (Australia) Pty Ltd [2016] NSWCA 251. One of the grounds of appeal was that her Honour erred in concluding that the evidence did not establish that the toxic substances came onto the furniture whilst in the possession of the defendant. Macfarlan JA, with whom McColl and Basten JJA agreed, considered this issue at [16]-[19]. His Honour found that Schmidt J did not err in her conclusion on this point. His Honour referred to the fact that Schmidt J had rejected the evidence of the plaintiffs' as not credible or reliable. His Honour concluded (at [19): "[19] In these circumstances, the appellants did not establish that the respondent breached its duty as bailee to take reasonable care to deliver the appellants' goods in Germany in the condition that they were in when received into its possession (see Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220; [1971] HCA 26 at 238-240). The evidence (other than that of the appellants) admitted of the possibility that the substances were on the dresser before the goods were shipped. On the other hand, and perhaps more obviously, the evidence suggested the substances may have been placed on the dresser subsequent to their delivery to the appellants in Germany, in the course of building renovations or otherwise. The appellants had the onus of proving that the goods were damaged whilst in the respondent's possession. If they prove that, the respondent would have been required to prove that it took reasonable care of the goods (ibid), but they did not do so." (bold emphasis added).
6. Accordingly, in this case the appellant bore the onus of proving the condition of the goods when they were delivered to the respondent. As observed above, when the artworks were collected by the respondent, they had already been wrapped in bubble wrap. The respondent's employees could not see the condition of the artworks. As we have also referred to above, there was no evidence as to who wrapped the artworks, or how or where they were stored in the gallery prior to collection by the respondent. The evidence of the appellant that she had seen the artworks in an undamaged state whilst hanging on the walls of the gallery three days prior to the collection is not, in our opinion and having regard to the circumstances of this case, sufficient evidence of their condition as at the date of collection by the respondent. In circumstances where the artworks, which were large and required special care, were removed from the walls of the galley and wrapped and moved by persons unknown and in a manner not identified by the evidence, we do not think that the evidence of the appellant as to what she saw three days earlier is sufficient of itself to support an inference that the artworks remained in that condition when collected by the respondent. As the Tribunal found, there is the possibility that damage to the artworks occurred during the period when they were taken down from the walls of the gallery, wrapped and stored until collected by the respondent.
7. In our opinion this finding was open to the Tribunal.
8. We also do not accept the appellant's submissions that the Tribunal incorrectly applied the standard of proof. The appellant submitted that the Tribunal fell into error by reaching the conclusion that there was a "real prospect" or that "it is possible" that the artworks were damaged at the gallery before collection by the respondent. We reject that submission. As in Larsen, the appellant here bore the onus to prove the condition of the artworks on collection. The evidence, or more particularly the lack of evidence as to the manner in which the artworks were dealt with at the gallery in the three days following their removal from the walls, wrapping and storage, left open the possibility that they were damaged during that time. It was for the appellant to lead evidence to prove otherwise. She did not do so and, in our opinion, the Tribunal did not err in its finding.

Ground three: Did the tribunal err in holding that the gallery was the appellant's agent?

1. The appellant argued that the Tribunal fell into error in failing to address with proper reasons the conclusion that the gallery was acting as the appellant's agent at the time it handed over the artworks to the respondent. The appellant submits that a relationship of agency is defined as a consensual relationship created through writing or conduct or by law where one party, the principal, grants authority to another party, to act on behalf of the principal in dealings with a third party. The appellant submits that the gallery was really only itself a bailee of the artworks authorised to hand them over to the respondent as a successive bailee.
2. The appellant submits that the Tribunal did not properly address the scope of any agency, if the gallery was the appellant's agent, but proceeded on the presumption that the authority of the gallery was not limited and that the gallery was authorised to give consent and/or instructions to the respondent as to the packaging and handling of the artworks.
3. Whilst the appellant has correctly summarised the basic principles with respect to the nature of the relationship of principal/agent, we reject the appellant's submissions on this issue. There can be no doubt that the appellant authorised, either expressly or by her conduct, delivery by the gallery of the artworks to the respondent. Mr Leslie, from the gallery, signed the consignment note for and on behalf of the appellant delivering the goods to the respondent. There was no evidence led by the appellant as to any restrictions on the gallery or its staff in delivering the artworks to the respondent, or any fetter on the gallery or its employees signing the relevant paperwork on behalf of the appellant.
4. These matters, in our opinion, indicate that for the purposes of delivering the artworks to the respondent, it was open for the Tribunal to conclude as it did that the gallery was the agent of the appellant.
5. As part of her submissions on this topic, the appellant also referred to the term of her contract with the respondent that it was responsible for wrapping the artworks for the purpose of transporting them to her home in Mayfield. She also referred to the term of the contract that the respondent was to take special care in dealing with the artworks. It was submitted by the appellant that these contractual terms ought to have alerted the respondent to the fact that the gallery was not responsible for wrapping the artworks, particularly for transport purposes, and that it was not authorised to rely on the gallery's wrapping of the artworks for such purposes.
6. We do not think that these matters go to the existence of the relationship of principal/agent for the purposes of delivery of the goods. Rather, they deal with an allegation that the respondent was in breach of its contract with the appellant in not ensuring the artworks were correctly wrapped when they were collected. As we understood the position advanced by the appellant, she submitted that when the respondent's employees saw that the wrapping had been done by the gallery, they should have contacted her for instructions.
7. It is not clear, however, in light of the evidence from the respondent's employees that the wrapping was satisfactory at least for the purposes of taking the artworks from the gallery to the truck where further bubble wrap and protective corners were added, what would have been the consequence if the respondent's employees had contacted the appellant. We do not think this point has any substance. In any event, because the appellant cannot prove the condition of the artworks as at the time of delivery to the respondent, even if she could prove that the failure of the respondent's employees to contact her when they saw the artworks had been wrapped was a breach of contract, she could not prove she had suffered any loss as a result of any such breach.
8. We reject ground three.

Ground four: Did the Tribunal err in failing to deal properly with the evidence?

1. The appellant's fourth ground of appeal is that the Tribunal's findings were not reasonably open on the evidence before it. Specifically, the appellant complains that the Tribunal erred by failing to consider the evidence that when the artworks were delivered to the appellant in Mayfield, the packaging, particularly the bubble wrap, was damaged.
2. The appellant notes that the evidence of the respondent's employees was that when they collected the artworks from the gallery, the bubble wrap was undamaged, yet when the artworks were delivered to the appellant, the bubble wrap was damaged. She submitted that the damage to the packaging on delivery was consistent with the damage to the artworks. Accordingly, so it was submitted (it has to be said skilfully by Mr Lettau who represented the appellant) it can be inferred that the damage to the packaging, and therefore the artworks, occurred whilst they were in the possession of the respondent. The respondent then had the onus to show that any such damage was not due to a lack of care on its part or its default. Mr Lettau submitted, therefore, that it was not open on the evidence before it for the Tribunal to infer that it was more probable than not that the damage to the artworks occurred before they were delivered to the respondent.
3. We do not accept these submissions. The Tribunal did not make any positive findings, or indeed draw any inference, that the artworks were damaged before delivery to the respondent. Rather, as has been canvassed above, it found that the appellant had failed to prove by any evidence the condition of the artworks at the time of delivery. The Tribunal expressly said that it did not need to decide whether the respondent breached the agreement with the appellant or did not perform the services with due care and skill because it was not satisfied that the applicant could prove it had suffered any loss or damage if there had been such a breach. That was because there was a real prospect the artworks were already damaged. That finding was open to the Tribunal due to the lack of evidence led by the appellant to prove the condition of the artworks as at the date of collection in circumstances where there was no evidence of the degree of care taken by the gallery in taking the artworks down from the walls, wrapping them and storing them for the three days before they were delivered to the respondent.
4. We reject ground four.

Orders

1. For the above reasons, the orders we make are: 1. The appeal is dismissed. 2. The order made by the Tribunal on 5 August 2016 is confirmed. 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: 31 January 2017