Levenah v McGrath t/as Tamaruke

Notice of Appeal

1. The grounds of appeal are summarised above. In essence, the appellant asks the Appeal Panel to reconsider the matter as the Member constituting the Tribunal did not understand the evidence provided. The appellant seeks reimbursement of the purchase price of Ruffles of $3,650, together with additional expenses incurred for medical, testing and training. She seeks a further order that the respondent be prevented from marketing and advertising her dogs as a Tamaruke breed. Finally, she wants the Australian Government to investigate the respondent's allegedly deliberately misleading marketing.
2. In relation to the Decision not being fair and equitable, the appellant states: … I do not believe my evidence was given fair and equitable consideration. I believe this to be the case as the member states she does not understand the points in the case. The Member also makes reference in the points, outlining the decision, that there wasn't sufficient evidence on some topics, when the evidence was clearly provided in the documents submitted for the hearing. I would like the opportunity for these documents to be reconsidered.
3. In relation to the Decision being against the weight of the evidence, the appellant states: I believe that my evidence was not given adequate weight reflecting the documents I provided in my evidence binder, submitted to NCAT for the Hearing. The decision was made without understanding. A document can be provided in response to the eighty-six (86) points outlined in the decision/reasons for decision, reflecting a directing to the evidence provided with reference to page number, to provide an understanding and for the appeal hearing to avoid further misunderstandings. For example: The Member stated that I didn't provide a full description of what a Tamaruke breed is. The misunderstanding being that the purpose for my case against Ms McGrath is that there is no evidence of a Tamuruke breed. Which encapsulates the essence of my case.

Reply to Appeal

1. In her Reply to Appeal filed 23 May 2022, the respondent states: 3B. REPLY TO APPELLANT'S GROUNDS OF APPEAL The grounds of appeal identified by the appellant are not clear, however the overall argument seems to be that there is an inconsistency between the findings of fact and the orders made. This is not the case for the following reasons: 1. Member Drennan considered each element of the factual allegations of the appellant including: a. Documentary evidence, some of which she considered unhelpful such as Facebook posts, a retraction relating to an irrelevant matter and text messages from unknown persons; b. Expert evidence concerning allegations that the dog was not genetically tested and suffered from congenital abnormalities; c. Representations made by the respondent about the breed of the dog and the evidence concerning the consideration of those representations by the appellant; and d. Whether the dog was of acceptable quality, which had two limbs: first that the dog was defective; and second that the dog was not fit for purpose because it could not be trained. 2. Having considered each of those matters Member Drennan concluded, by reference to the evidence, that: a. the applicant failed to establish that the dog was not fit for purpose [para 41 p 16]; b. although the respondent had made representations concerning the Tamaruke breed the evidence was not that representations were that the dog was a "pure bread" [para23 p 12]; c. there was no breach of consumer guarantee [para 42 p17]; d. the appellant failed to establish an entitlement to a refund having failed to raise the issue during the rejection period [para 45-49 p 17]; and e. there was no evidence of loss or damage [para 54 p 18]. The respondent contends that the appellant has not demonstrated an entitlement to full financial compensation, particularly in circumstances where she wishes to retain ownership of the dog. The other orders sought by the appellant are not within the power of the Tribunal. 3. The respondent contends that the appellant has not demonstrated an entitlement to full financial compensation, particularly in circumstances where she wishes to retain ownership of the dog. The other orders sought by the appellant are not within the power of the Tribunal.

Nature of an appeal

1. The Reply to Appeal then goes on to address the question of whether leave to appeal should be granted. Here we note that s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other ground (s 80(2)(b)).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right.
3. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
4. We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Accordingly, putting aside the issue of an extension of time to file the Notice of Appeal, the appellant requires the leave of the Appeal Panel to bring the appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether to leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: 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.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
4. In relation to this issue, in her Reply, the respondent states: 4 REASONS FOR OPPOSING GRANT OF LEAVE The Appellant must convince the Tribunal that she has suffered a substantial miscarriage of just because of one of the following grounds. The decision was not fair and equitable. 1. In circumstances where Ms Levanah adopted the position that she wanted compensation but also wanted to keep the dog she cannot satisfy this requirement. The decision was against the weight of the evidence. 2. The original decision dealt carefully with all the evidence on both sides. Set out below are some examples. a. The Member was impressed by the evidence from George Sofronides and gave it "significant weight". Her reasons for doing so are well explained and rational. b. In particular, she gave considerable weight to the evidence concerning the "developmental breed" [see paragraph 22 p 11]. c. The Member also accepted the evidence in the respondent's emails that the dog was "not sold as a pure breed". d. The Member noted that Ms Levanah had "not provided ...any evidence that Ruffles has unsatisfactory hip and elbow scores or any other defects". e. The Member carefully considered the genetic evidence and accepted that it did not, on its face, give rise to a medical diagnosis of any of the claims made by Ms Levanah. f. On the question of training, the Member considered the evidence and concluded that there was no basis for the contention that Ruffles was not suitable for training as a result of any physical or emotional impairment. 3. The letter attached to the application fails to provide any detailed analysis. For example, the appellant does not identify the evidence which it is contended the Member failed to consider beyond the bare assertion that the appellant's evidence was not accorded adequate weight. Significant new evidence is now available that was not reasonably available at the time of the hearing. 4. The appellant had not provided any information to meet this requirement of leave.

Summary of the appellant's submissions

1. The appellant relied, amongst other documents, on an annotated version of the Decision. In this document, the appellant comments on each and every of the paragraphs of the Decision, effectively making additional submissions and offering additional explanation for the matters found by the Tribunal.
2. By way of example, in response to par [1] of the Decision which is set out above, the appellant states: I did not get what I paid for: which was a Tamaruke pure breed of dog, whose parents had allegedly undergone world class levels of genetic testing prior to breeding (as per their website and marketing materials). Due to the possibility of him having epilepsy. I had his DNA tested, which uncovered the predisposition to the genetic condition IVDD. Because of this, he is unsuitable to be trained as an assistance dog for my daughter, as it could cause harm to him, nor is it in my daughter's best interest to have a dog that cannot support her as required. The DNA results also discovered that he is not a "Tamaruke", he is a crossbreed of 94% poodle and 6% cocker spaniel, which means that I did not get what I paid for; a Tamaruke breed of dog. See Applicant's Original Evidence Bundle from Hearing dated 9th August 2021 Pages: 6-9: Email from Charlotte (note "What is a Tamaruke?", "Our Breeding Dogs" & "Why Tamaruke?") 19: Orivet DNA Test Results 37-39: Embark DNA Test Results
3. It can be observed that the commentary includes a combination of submissions and cross-references to the evidence before the Tribunal.
4. The annotated Decision extends for some 54 pages. The annotations include a number of recurring themes including that:

• the respondent deliberately providing false and misleading information to the appellant and the Tribunal;
• the Tribunal misunderstood the evidence;
• the appellant "did not get what [she] paid for".

1. In other comments, the appellant says that the evidence of one witness, Mr Gatt, was misleading.
2. We noted above that [10] of the Decision the Tribunal commented that neither party had provided it with an expert's opinion as to what is and what is not a pure breed. In the commentary on this paragraph the appellant states that "[t]his can be easily found in the dictionary", and then sets out the definitions of "pure-bred", "breed" and "cross-breeding" from an online dictionary source.
3. The appellant supplemented her written submissions with oral submissions, emphasising the matters of the greatest importance to her, namely that the Tribunal erred in finding that Ruffles was not a pure breed, and that the decisions of the Tribunal in relation to her three principal claims was against the weight of the evidence.

The respondent's submissions

1. The respondent relied on written submissions filed 30 June 2022 and 11 July 2022. In summary, in relation to the substance of the appeal and the prospects of success, the respondent submits that: 1. as to the appellant's contention that the Tribunal failed to take into account misleading representations in relation to genetic testing by the respondent, the Tribunal carefully considered the representation case and made causation findings in favour of the respondent at [24] to [27 of the Decision; 2. the appellant has annexed documents to her submissions which appear to be new evidence, but failed to address the basis upon which she now claims to be entitled to rely on that evidence and it should therefore not be considered as part of the leave application or appeal; 3. as to the contention that the Member did not carefully consider the evidence concerning the training of Ruffles, the Member carefully considered the evidence concerning training and found that the appellant had failed to adduce any evidence to demonstrate that Ruffles was not capable of being trained as an assistance dog: [34] to [37] of the Decision; 4. a significant hurdle for the appellant is her position concerning the return of Ruffles. The Member accepted the evidence from the respondent that the appellant was free to return Ruffles and she would receive a refund while the appellant indicated that she would not return Ruffles even if compensated and that Ruffles been "re-homed" and cannot be returned. Here the respondent submits that the position adopted by the appellant is emblematic of her disregard for procedure and fairness and speaks loudly against the exercise of any discretion in her favour; 5. the approach of the appellant is in substance little more than an expression of disagreement with the Member's findings. That is not a basis on which the Tribunal could grant leave: Temple v AMR Motors Ply Limited [2017) NSWCATAP 221 at [38]-[39]; 6. there is no error in how the Member identified the relevant issues, considered the evidence, or reached her conclusions; 7. in substance, the appellant's objection to the decision below is that the Member preferred the evidence of the respondent to that provided by the appellant.

Consideration of the prospects of success

1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple, in passages relied on by the respondent: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
2. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
3. This appears to be precisely what the appellant is seeking to do.
4. In our view the Decision was detailed, considered and entirely orthodox in its reasoning. We detect no error in the Decision. We consider that the Tribunal conformed with the expectation to provide reasons and that those reasons surpassed the minimum acceptable standard. The structure of the Decision was appropriate, and the member set out the relevant principles to be applied and made relevant findings of fact, supported by evidence.
5. Despite the voluminous submissions and commentary of the appellant in relation to each and every paragraph of the Decision, as the Court of Appeal stated in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [77]: … iii. the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; iv. the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291.
6. As noted, we detect no error of law in the Decision. To the extent that the appeal raises other errors, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact-finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Extension of time

1. Against that background, we now turn to the extension of time.
2. The Notice of Appeal in relation should have been filed within 28 days, that is by 29 September 2021. As it was filed on 14 April 2022, it was filed some six and a half months out of time.
3. The Tribunal has the power to grant an extension of time: s 41 of the NCAT Act. The principles governing extensions of time are well-established and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44. In summary, the considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal may be summarised as follows: 1. the length of the delay; 2. the reason for the delay; 3. the extent of any prejudice suffered by the respondent; and 4. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.

The length of the delay

1. In circumstances where an appeal must be filed within 28 days, and this appeal was filed six and a half months out of time. Clearly, this is a considerable delay. This factor militates against an extension of time.

The reason for the delay

1. To put the matter neutrally, the appellant says that there have been various medical and health issues which affected her ability to file the Notice of Appeal within the time required by the Rules. There is a degree of sensitivity about these matters with certain documents being provided to the Tribunal on a confidential basis, with the appellant asking that those documents not be provided to the respondent.
2. We have not done so, but nor have we looked at those documents ourselves, as that would be procedurally unfair to the respondent.
3. The appellant did provide a summary document to both the Tribunal and the respondent being a chronology on which she relies to explain her delay. We accept that there is some justification in the reasons advanced for the delay but, as we have noted, the delay is quite considerable.

The extent of any prejudice suffered by the respondent

1. The respondent submits that undue delay of itself imposes strain and uncertainty on litigants: Aon Risk Services Australia Limited v Australian National University (2009) CLR 175; [2009] HCA 27. She also says that she suffers significant anxiety and worry about the future of her business whilst proceedings are underway which pose significant reputational risks.
2. In our view there would be little real prejudice to the respondent in extending the time to bring the appeal. This factor favours an extension of time.

The appellant's prospects of success, that is whether the applicant has a fairly arguable case

1. As noted above, in our view, the appellant has not raised any question of law.
2. Therefore, the appellant requires a grant of leave to prosecute the appeal. As we have noted above, we see no basis on which leave should be granted.
3. Furthermore, as we have noted, the Decision was detailed, considered and entirely orthodox in its reasoning, and conformed with the expectation to provide reasons and that those reasons surpassed the minimum acceptable standard.
4. In our view, the prospects of success are extremely low. This factor weighs heavily against an extension of time in which to extend the filing of the Notice of Appeal.

Conclusion

1. Given the length of the delay and the minimal prospects of success, we consider that an extension of time to 14 April 2022 to file the Notice of Appeal should not be granted.

Orders

1. The Appeal Panel therefore orders: 1. The application to extend of time the time for filing the Notice of Appeal to 14 April 2022 is refused. 2. The appeal is otherwise dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022