This is an appeal from a decision which denied the appellant's claim for a refund of the $15,000 he paid ($5,000 on 18 August 2022 and $10,000 on 4 May 2023) for a European driving tour due to commence on 11 September 2023 which he cancelled orally in May 2023 and by email on 8 June 2023.
Having considered the issues raised by the appellant in his Notice of Appeal, including the need for an extension of time, we have determined that the time for lodging the Notice of Appeal should be extended, that leave to appeal should be granted, that the appeal should be allowed, and the proceedings be remitted for rehearing by a different member of the Tribunal, with the evidence not being confined to the evidence that was submitted in the original hearing.
Our reasons for that outcome are that there is an issue requiring determination as to the wording which constituted the respondent's offer that was accepted by the appellant, and we are unable to resolve that issue, noting that the recording of the first instance hearing was not sufficiently clear to enable us to consider the oral evidence given during the first instance hearing.
[2]
Scope and nature of internal appeals
An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run the party's case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in Guideline 1, Internal Appeals (which is published on the Tribunal's website), "an appeal is not an opportunity to have a second go at a hearing".
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13] the Appeal Panel listed questions of law as follows:
(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 had been applied …
(4) Whether there was a failure to afford procedural fairness …
(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations …
(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 is so unreasonable that no reasonable decision-maker would make it …
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(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).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated 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.
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] set out the relevant considerations as to whether to extend time for an appeal:
1. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
2. The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
3. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
1. The length of the delay;
2. The reason for the delay;
3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
1. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
The orders which may be made by an Appeal Panel are set out in s 81(1) of the NCAT Act, which is quoted. below:
(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -
(a) the appeal to be allowed or dismissed,
(b) the decision under appeal to be confirmed, affirmed or varied,
(c) the decision under appeal to be quashed or set aside,
(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
[3]
Grounds of appeal
The grounds of appeal may be summarised as follows: (1) there was no signed contract, (2) the booking was not made via the website to which reference was made, (3) the wording of that website was changed by the respondent after the application was lodged, (4) as a result, the decision was based on conditions that did not exist when the booking was made, (5) a case, said to be identical, was decided against the respondent, and (6) the decision referred to the ACCC guidelines but said they were not law.
Leave to appeal was sought on the basis that there were "two diametrically opposed decisions on two identical claims" which was said to render the decision under consideration not fair and equitable.
It was also contended that the decision was against the weight of the evidence. Under this heading, additional to matters set out above, it was contended the respondent had not suffered loss due to the appellant's cancellation.
The appellant also asserted that there was significant new evidence, now available, that was not available at the time of the hearing. It was said that the appellant only recently learned how to obtain metadata to show that the respondent's website was altered.
Accepting that an extension of time was required, the explanation given in the Notice of Appeal was that the appellant had to wait for a decision in the other case, being a decision that was not made until 22 March 2024. It would appear the appellant expected the outcome of that application to match the outcome in his application and, when it didn't, he sought to pursue an appeal.
[4]
Reply to appeal
It was asserted that there was a contract, and that the respondent's website was not altered. A summary of the respondent's expenses was said to have been provided at first instance and that original records would have been produced if that summary had been opposed.
In relation to the other decision (Burgess), the basis upon which the appellant claimed that case had been decided was contested and it was suggested that the Member deciding Burgess should have had regard to the first instance decision in this case, which is challenged in this appeal.
An extension of time was opposed, primarily because it was said that an appeal would have been lodged in Burgess if the outcome of this appeal been known.
[5]
Documents
The Notice of Appeal was lodged on 6 May 2024 and a Reply to Appeal was received on 18 June 2024. Documents lodged by the parties in respect of this appeal were those received from the appellant, on 18 and 31 July 2024, and from the respondent on 1 August 2024.
[6]
Hearing
Having identified the relevant documents, and having clarified the basis of the appeal, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of his or its case and to respond to the case of the other party. Those submissions are summarised below.
[7]
Appellant's submissions
It was said that there were two key reasons for this appeal: (1) the evidence that was before the Member as to what constituted the wording of the respondent's was not correct; (2) another applicant had made the same claim with a different outcome.
As to the first of those reasons, it was asserted that the appellant did not book by reference to the respondent's website, but in response to being given a brochure that contained different wording to what was tendered at the first instance hearing. It was said that the respondent submitted a brochure to the hearing, with the wording on the last page, under the heading "Booking", being as follows (emphasis added):
There are only 10 places available for this tour and early indications are that it will be oversubscribed. Places on this tour will be allocated on a first in basis. To secure a place you will need to provide an initial non-refundable deposit of $5,000. Further non-refundable deposits of $10,000 will be required, usually 6 months and 3 months prior to the tour.
The wording of the brochure provided to the appellant and by reference to which he booked was said to be different from what was submitted at the first instance hearing by the respondent in that a sentence had been added, being the last sentence, set out above in bold type. While the appellant maintained that he had not booked by reference to the respondent's website, he claimed that the respondent's website had been changed between 25 March and 10 December 2023, with the amended wording under the heading "Booking" matching the expanded wording of the brochure. Pages 6 and 7 of the documents received from the appellant on 31 July 2024 provided copies of those differing wordings.
It was the appellant's case (1) that it was only after the first instance hearing that he had ascertained that he could use the Wayback Machine facility to see that the respondent's website had been changed, (2) that his using such a facility provided significant new evidence, and (3) that such evidence provided support for his claim that the wording of the printed brochure submitted to the hearing by the respondent was not the wording of the brochure provided to him.
The second reason advanced in support of the appeal was that another applicant, booking with the same respondent, had achieved a full refund. It is to be noted that the refund in that case was $15,000, the same amount being claimed by the appellant, and not just the "initial non-refundable deposit of $5,000".
Additional matters raised by the appellant were (1) that the respondent had not established that it had incurred costs which the first instance decision took into consideration, and (2) that his case had not been fully determined because he had submitted a copy of 16 pages of guidelines published by the Australian Competition and Consumer Commission (ACCC) in relation to the Australian Consumer Law (ACL).
[8]
Respondent's submissions
The respondent contended that the version of the brochure which the appellant said he had been given was not the brochure used by the respondent at that time. Reference was made to oral evidence given at the hearing. Submissions were also made in relation to the application of Geoffrey Burgess and to the issue of the costs incurred by the respondent. It was also contended that an extension of time should not be granted to the appellant.
[9]
Submissions in reply
No additional matters were raised in reply, other than to indicate that a copy of the recording of the first instance hearing had been obtained but was not sufficiently clear to enable it to be transcribed.
[10]
Relevant law
The effect of s 28 of the Fair Trading Act 1987 (NSW) (the FTA), is that the provisions of the Australian Consumer Law (the ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth), became part of the law of New South Wales and apply to the claim which is the subject of these proceedings.
[11]
Consideration
For the sake of completeness, it is convenient to briefly deal, in turn, with each of the matters set out above as being the grounds of appeal.
[12]
No signed contract
It is not necessary for there to be a signed contract because a contract can be written or oral and can even be established by reference to conduct. The only requirements for there to be a contract are (1) there must be an offer, (2) there must be acceptance of that offer, and (3) there must be an exchange of something of value, either good or services or money.
[13]
Reference to the website
It is noted that the appellant contends he booked by reference to a brochure and not the respondent's website. A finding on that issue would depend on the evidence before the Tribunal at first instance. We were provided with copies of the documents upon which the parties relied at the hearing: a copy of the documents upon which the appellant relied were marked for identification as MFI 1 and those of the respondent were marked MFI 2. However, we do not have available to us either a recording or a transcript of the oral evidence that was given during the first instance hearing.
During the hearing of the appeal, the appellant provided to the Tribunal the original copy of the brochure he maintains was provided to him. That document was labelled MFI 3. (The appellant advised the Registry that he did not wish for the brochure to be returned to him. It should be retained by the registry as the appellant may wish to rely on it at the rehearing.)
[14]
Change in website wording
There are documents before us which suggest the respondent's website has been changed. That is considered below, when dealing with the issue of new evidence.
[15]
Decision based on incorrect conditions
Whether the decision was based on incorrect conditions is a matter requiring a consideration of both written and oral evidence.
[16]
Different decision in another case
Decisions in a court or tribunal depend on issues of fact and law. Even if cases raise the same issues of law, the facts may be different. While we have available a copy of the order that was made in relation to the application made by Mr Burgess against the respondent on 22 March 2024, the reasons for that decision were given orally. As a result, for that decision to be taken into consideration it would be necessary to obtain a copy of the recording made of the hearing of that application and have a typed transcript prepared so that the question of whether the decision in that case should be followed in this case can be assessed.
[17]
Reference to ACCC guidelines
The ACL is both lengthy and detailed. It is difficult to expect a self-represented litigant to chart a path through the ACL to identify the section(s) upon which a consumer's claim is based. That explains why the ACCC has published guidelines. However, when an applicant makes a claim, it is for the applicant to establish that claim, including both the facts and the law upon which the claim is based.
While it is understandable that an applicant such as the appellant may simply refer to and rely on guidelines published by the ACCC, it must be recognised that, if the Tribunal were a football match, the presiding member would be the referee and not a coach. It is relevant to note that one of the Tribunal's objects, as set out in s 3(c) of the NCAT Act, is "to ensure that the Tribunal is accessible and responsive to the needs of all of its users", but that must be balanced against the obligation to act fairly and impartially and to accord procedural fairness (see especially s 38(5) of the NCAT Act).
After referring to what was said in Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316], the decision in Bauskis v Liew [2013] NSWCA 297 at [67]-[70] summarised the relevant principles when there is a self-represented party as follows (case citations omitted):
67 First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case.
68 Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just.
69 Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.
70 Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant.
Although the principles are clear, their practical application can be difficult. An application such as that which gave rise to this appeal is normally first listed for a preliminary hearing: what is commonly referred to as a group list hearing or directions hearing. That initial hearing of the application is intended to see if the application can be resolved between the parties, without the need for a final hearing. If not, directions are made to prepare the application for a final hearing.
Ideally, on that occasion, for applications that cannot be resolved, the issues can be identified, and directions made for the provision, to the Tribunal and the other party, of the documents upon which each party intends to rely at the final hearing.
However, with a number of matters listed at the same time, and with one hour to deal with them all, it is difficult to deal with each application as extensively as may be desirable. In such circumstances, it may be that no more is done than to set a timetable for the provision of the documents which the parties wish to be their evidence at the final hearing.
In some cases, the issues will be clear from the application. When that is not the case, the alternatives are (1) if time permits, to record what are the issues at the initial hearing, or (2) otherwise, require the provision of Points of Claim by the applicant and the provision of Points of Defence by the respondent.
By way of explanation, the document referred to as Points of Claim is a summary of the claim which states, often in point form, the orders sought and the reasons that those orders are sought. Ideally, that document will include reference to the sections of the statute upon which the applicant relies. The document referred to as Points of Defence should set out a summary of the respondent's answer to the claim, setting out in point form the reason(s) why the claim is opposed.
Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 at [5] suggests that the Tribunal is not required to go "fossicking and ferreting" through the evidence to find a party's case. Likewise, it is not appropriate for a party to submit a bundle of documents and expect the Tribunal to find a legal basis upon which the applicant is entitled to rely.
It would be permissible for a presiding member, if the position is not clear at the outset of the hearing as to what are the dispute issues, to clarify the position.
That would serve to ensure that (1) the respondent (or respondents) know the nature of the applicant's case and is able to respond to it, and (2) the Tribunal considers and decides each of those issues. However, care needs to be exercised so that, to continue the analogy of a football match, the Tribunal is not seen or even thought to be discarding the whistle and calling for the ball.
[18]
Respondent did not suffer any loss
The question of whether the respondent suffered any loss is an issue that depends on both the nature of the applicant's claim and the evidence. Neither of those matters is sufficiently clear to enable us to make that determination and we deliberately make no comment to avoid any suggestion we are providing advice to one of the parties.
It is convenient here to note that the appellant's case plainly goes beyond a case based on his contended wording of the contract for the non-refundable amount to be only $5,000 since he is seeking a refund of the full amount he paid to the respondent, namely $15,000.
[19]
Not fair and equitable
This contention was based on the differing decision in relation to the application of Mr Burgess, which was determined in his favour, unlike the application of the appellant. A determination of this aspect of the appeal cannot be made without knowing the reasons for the decision in relation to the application of Mr Burgess. That is of no consequence for this appeal because of the decision we have reached in relation to what may be termed the new evidence issue.
[20]
Against the weight of the evidence
While the parties provided the written evidence available at first instance, we do not have the oral evidence due to the quality of the recording. Again, it is not necessary to determine this aspect due to our decision on the new evidence issue.
[21]
New evidence
The basis of this contention was that the appellant had been able to access an earlier version of the respondent's website only after the hearing.
While the appellant's case was that he did not book by reference to the respondent's website, that evidence could be used to go to the question of which version of the respondent's brochure was provided to the appellant.
It is sufficient to record that, having read and considered both the documents provided by the parties and the oral submissions made during the hearing, we are satisfied that (1) the appellant has provided new evidence, (2) that evidence is significant, and (3) that evidence was not reasonably available to the appellant at the time of the hearing.
[22]
Leave to appeal
The significant prospect of the contract having a different wording, combined with a different outcome in seemingly similar applications, has persuaded us that there is a significant risk that there has been a substantial miscarriage of justice. Our view is that the position is reasonably clear, in relation to the central matter of what was the contract between the parties, that it would be unjust to allow the decision which is the subject of this appeal to stand given the uncertainty on that topic of competing recollections of the parties as to which version of the brochure the appellant was given by the respondent and the significant new evidence as to the alleged later time when the website was changed to a version of contract terms consistent with what the respondent alleged was given to the appellant.
It remains to consider whether to grant an extension of time for the appellant to commence this appeal.
[23]
Extension of time
The order made to finalise the application was made on 19 December 2023. The 28-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) means that a Notice of Appeal should have been lodged by 16 January 2024. Since the Notice of Appeal was lodged on 6 May 2024, it was lodged more than four months after the decision instead of within four weeks.
Thus, the appellant needs to have the time for lodging the Notice of Appeal extended from four to just over fourteen weeks. The relevant dates are set out in the following table:
19 Dec 23 Order made in favour of the respondent in this case
16 Jan 24 Date by which Notice of Appeal should have been lodged
22 Mar 24 Order made against the respondent in Burgess
06 May 24 Date when Notice of Appeal was lodged
[24]
The appellant says he waited for the decision in Burgess, then appealed.
It is understandable that the appellant was motivated to appeal by the outcome in Burgess. If the date of that decision were to be taken as the starting point then 28 days from 22 March 2024 is 19 April 2024 and the appeal is only just over two weeks late.
The respondent says it would have pursued an appeal from the decision in Burgess if it had known the appellant would pursue this appeal from the earlier decision in relation to his application.
It is also understandable that the respondent may have lodged an appeal in Burgess had he known of the present appeal and our decision in this appeal. However, it remains open to the respondent to pursue an appeal from the decision in Burgess, seeking an extension of time for such an appeal, just as the appellant has sought an extension of time for this appeal.
We have considered the length of the delay and the reason for the delay, in conjunction with our view that the appellant's case is fairly arguable and that any prejudice suffered by the respondent, namely, appealing the decision in Burgess, can be addressed.
It is our considered view that the appellant's case has sufficient strength to prevail over the delay in lodging the Notice of Appeal and any resulting prejudice to the respondent if an extension of time to appeal in the present proceedings is granted.
[25]
Orders
Having determined that the appeal should be allowed, it remains to consider questions of (1) whether to determine the application or remit the application for rehearing, (2) if remitting for rehearing, whether there should be a different presiding member, and (3) whether the parties should be permitted to rely on additional evidence.
As to the first of those three matters, since we do not have available to us the oral evidence that was given at the first instance hearing, we are unable to determine the issues with the result that there should be a remitter for rehearing of the application.
Secondly, our decision that the rehearing should be conducted by another member of the Tribunal should not be seen to involve any criticism of the Member who presided at first instance. We consider that to be the preferable course because there will be a contested question of fact, being the same issue that was considered in the first instance hearing, but with evidence that may be expected to be different.
Thirdly, given the issues which have been raised (1) in relation to the wording of the brochure said to have given rise to the contract, and (2) the question of what costs the respondent incurred by the time the request for a refund is made, we consider that the parties should not be confined to the evidence that was led at the first instance hearing.
For the reasons set out above, the following orders are made.
1. The name of the respondent is amended to David Thomas Driving Adventures Pty Ltd.
2. The time for lodging the Notice of Appeal is extended to 6 May 2024.
3. Leave to appeal is granted.
4. The appeal is allowed.
5. The proceedings are remitted for hearing by a differently constituted Tribunal with the parties to submit afresh the evidence upon which they wish to rely.
6. The remitted proceedings should be first listed for directions on remittal to make such directions for the future conduct of the proceedings as the Tribunal thinks fit, having regard to these reasons.
[26]
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
[27]
Amendments
05 September 2024 - Decision updated by Members
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: 05 September 2024
Parties
Applicant/Plaintiff:
Lewis
Respondent/Defendant:
David Thomas Driving Adventures Pty Ltd
Legislation Cited (5)
Australian Consumer Law Civil and Administrative Tribunal Act 2013(NSW)