List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 79 and 82

Competition and Consumer Act 2010 (Cth), schedule 2 (Australian Consumer Law)

Sale of Goods Act 1954, s 19

List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2), s 21

List of Cases: Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14

Garry O'Donnell v Environment Protection Authority [2012] ACTSC 140

Levet and Levet & Dalla [2013] ACAT 52

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Vetter v Lake Macquarie City Council (2001) 202 CLKR 439

List of Texts/Papers: Aronson M, "Unreasonableness and Error of Law" (2001) 24(2) UNSWLawJl 315

Appeal Tribunal: Ms E Symons - Presidential Member

CIVIL & ADMINISTRATIVE TRIBUNAL) AA 13/24 (XD 12/1576)

1. This is an appeal from a decision made by the ACT Civil and Administrative Tribunal (the original tribunal) on 23 April 2013 that the appellant (the appellant), who was the respondent in the proceedings before the original tribunal, pay to the respondent (the respondent), who was the applicant in the proceedings before the original tribunal, the sum of $2,647 within 28 days and that the appellant's counterclaim be dismissed.
2. The matter concerns a civil dispute relating to work for removal and installation of an air conditioning unit (the work) at a property owned by the appellant and the contract price (the contract price). At the time of the work the appellant was working for the respondent; she left the respondent's employment after the work was carried out. The respondent sought to recover the balance outstanding on the contract for the work. The appellant disputed that there was any verbal agreement confirming the price for the work and maintained that she did not see the quotation for the work until after the work had been undertaken and she had ceased working for the respondent.
3. The original tribunal delivered written reasons for the decision.
4. The appellant now appeals that decision. On 22 May 2013, the appellant was granted an extension of time to 4 June 2013 in which to lodge her appeal.
5. In her Application for Appeal lodged on 4 June 2013 she sought:

1. Dispute sum of $2,647.00 to be reverted as an unreasonable demand.
2. Cost."

1. At a directions hearing on 21 June 2013 the tribunal ordered the appellant to file and serve an amended appeal notice identifying question/s of fact and/or law. The tribunal made directions in relation to the filing by the parties of material, including relevant case law. The tribunal also made an order that, in accordance with section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the appeal would be dealt with as a review of the original decision.
2. The appellant filed an amended Appeal Notice on 5 July 2013 in which she set out eight grounds of appeal she relied on and sought the remedies referred to in paragraph 5 above. The respondent filed a response to the amended Appeal Notice on 9 July 2013.
3. At the hearing on 5 August 2013 the appellant participated by conference telephone and represented herself and in accordance with the Affidavit of Corporation Representative filed on 24 July 2013 Mr Krish Goundar, an officer of the respondent, represented the respondent. At the conclusion of the hearing the tribunal reserved its decision.

1. Section 79 of the ACAT Act refers to appeals within the tribunal. It relevantly states:
   1. Appeals within tribunal

(a) the tribunal has decided an application (the original application); and

(b) the original application was not an appeal from a decision by the tribunal.

(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

1. Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) sets out the tribunal's general powers for an appeal. It states:
   1. Appeals to tribunal - general powers

(a) has all the powers and duties of the tribunal that made the order appealed from; and

(c) may receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and

(d) may make an order confirming, amending or setting aside the order of the tribunal appealed from; and

(e) may make any other order it considers appropriate.

1. As the tribunal determined, pursuant to section 82(b) f the ACAT Act, the appeal would be dealt with as a review of the original decision the tribunal has taken into consideration the following statements in the recent tribunal appeal decision of Levet and Levet and Dalla[1]:

"the appeal should be regarded as 'an appeal in the strict sense' within the meaning used by her Honour Justice Penfold in the matter of Garry O'Donnell v Environment Protection Authority[2]: that is the tribunal should determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Such a decision did not involve coming to a conclusion that the appeal tribunal may have taken a different view from the member originally hearing the matter, considering the weight of the evidence on either side. It would involve the appeal tribunal determining that the decision of the original member, having regard to the evidence, was so unreasonable that no reasonable decision maker could have come to that conclusion."

1. The appellant has the onus or obligation of satisfying the tribunal that, taken as a whole, the decision being appealed is so unreasonable that it could not stand.

"The order from the Tribunal made on 17 January 2013 was that the respondent required filing statement of witness on the evidence the respondent relies, please referring to the [exhibit "A"], however, NO statements of witnesses were filed in respondent's submission dated 20 February 2013 and three witnesses were testified against the appellant during the hearing on 25th March 2013. The appellant was caught by surprises; there was an issue of procedure fairness in the hearing dated 23 April 2013."

1. The appellant told the tribunal that she had not raised an objection at the hearing to the matter proceeding without the respondent having filed witness statements and she had not sought an adjournment. The appellant said that Senior Member Chenoweth had asked the respondent why witness statements had not been filed and said that he was exercising his discretion to proceed with the hearing.
2. While acknowledging that the respondent's statement lodged on 20 February 2013 stated the respondent had two witnesses, Ivan Cengic and Michael Neale, the appellant said she was taken by surprise by their evidence and Mr Goundar's evidence, as 'they were not telling the truth, the quotes had not been emailed to her and the witnesses were not able to say why the quotation had two different dates'.
3. The appellant was a qualified legal practitioner at the time of the hearing before the original tribunal although not working in that area at that time. She agreed that she had had an opportunity to cross examine each of the witnesses before the original tribunal. She had not objected to the hearing proceeding and she had not sought an adjournment. Had she done so and an adjournment been denied, then there may be some merit in her claim that she was denied procedural fairness. The original tribunal was entitled to take into consideration that she was a qualified legal practitioner and should have been aware of how a hearing would be conducted. The tribunal is not satisfied, in the particular circumstances of this matter, that the appellant was denied procedural fairness as claimed.
4. The appellant told the tribunal that the original tribunal had erred in finding as a fact that she had agreed to the quotation, reiterating her evidence to that tribunal that she had not agreed.
5. It was readily apparent from reading the decision that the evidence of the appellant and the respondent's witnesses differed and that tribunal dealt with this issue in paragraph 14 where it is stated:

"14. Having heard the witnesses for the applicant and the respondent, I am satisfied that the evidence of the applicant's witnesses is to be preferred to the respondent where they differ...

While the respondent denies receiving the invoice prior to the work having been done, and maintains she had no contract with the applicant in relation to the installation, this evidence raises serious questions as to why a person (particularly a legal practitioner) would allow access to her property for the installation of a new unit unless she knew the terms upon which this work was to be done. If she had believed that there was no verbal commitment to a figure of about $4,000, and was still of the view that the work could be done for a lower price, she took no steps to raise that with the applicant at the time of the removal and installation of the new unit. I find it difficult to accept that somebody in her position, both as a landlord and a legal practitioner, would not have had the commercial understanding to check what the cost of the work to be undertaken on her property was likely to be."

1. It has long been accepted at common law that the weight given to various considerations is generally for the decision maker and it is not for a court or other review body to determine.[3]
2. In Vetter v Lake Macquarie City Council[4] Kirby J, citing Edwards (Inspector of Taxes) v Bairstow[5], accepted that a view of the facts taken by a primary decision maker will be an error of law if no reasonable decision maker could have come to it. Professor Aronsen noted[6] in his paper "Unreasonableness and Error of Law" that there is "general agreement" in the authorities that "the application of law to fully found facts produces an error of law only when the outcome is clearly not open".
3. It was clear that the appellant was unhappy that her evidence was not preferred and that what she describes as an unjust and unfair outcome has resulted. However, having carefully considered the decision this tribunal is satisfied that this finding of fact was reasonably open to the original tribunal on the available evidence.
4. Ground one of the appeal is not made out.

1. The appellant submitted that in paragraph 17 of the decision the original tribunal failed to consider the appellant's rights as a consumer under Australian Consumer Law (ACL) and in particular schedule 2 of the Competition and Consumer Act 2010. The appellant submitted that the respondent installed a cheaper model of the air conditioning unit and that the unit installed was not the same model as in the quotation.
2. Paragraph 17 of the decision states:

"17.Having regard to the evidence I am satisfied to the required degree that there was a contract formed between the applicant and the respondent prior to 12 May 2012 for the removal and installation of an air conditioning unit for the price of $4,147. As the applicant has paid $1,500 of this, the tribunal determines that the balance of $2,647 is to be paid to the applicant by the respondent within 28 days."

1. The tribunal notes that the original tribunal did consider the evidence in relation to the installed unit having a different model number to the model number on the quotation where it stated in paragraph 10:

"...The respondent produced photographs indicating that the model number on the unit installed was different from the model number on the quotation itself. No evidence was available as to whether this made any difference to the performance of the unit, and I was unable to make any judgment about whether there was any significance in this."

1. The appellant conceded that she had not asked the original tribunal to consider ACL. The appellant had not, in her Response in the original proceedings or in her Counterclaim, raised her ACL rights. It is not for the tribunal to assume the conduct of a party's claim.
2. The appellant told this tribunal that the new unit had been installed in May and June 2012 and she had not inspected the unit until some months later when the respondent demanded payment. The property where the unit was installed was tenanted. Before payment was demanded she had only telephoned the tenant to find out if the unit was installed and working.
3. The tribunal is satisfied that the original tribunal did consider the installation of a different model to the model in the quote and found, due to the state of the evidence, that it was unable to make any judgment about whether there was any significance in this. While the original tribunal did not specifically refer to ACL this is not surprising as it was not raised by the Appellant. There was simply no evidence before the original tribunal in relation to the performance of either unit.
4. The tribunal is not satisfied that there is any merit in this ground of appeal.
5. The appellant reiterated that the verbal discussions about the work had not included a model number and that she had not received the quotes which the respondent had said were emailed to her until the original proceedings commenced. She had given this evidence to the original tribunal. It differed to the respondent's evidence. As stated above in paragraph 18, the original tribunal found that where the evidence differed it preferred the evidence of the (now) respondent's witnesses. As stated in paragraph 19 above, the weight to be given to various considerations is generally for the decision maker and not for a review body to determine.

"The appellant as a consumer should be protected under the Competition and Consumer Act 2010, pay for the fair amount or received the goods which is descripted in the quotation provided by Atlas. Rasell v Garden City Vinyl and Carpet Centre Pty Ltd (1991) ATPR 41-152"

1. The tribunal refers to its findings above in relation to ACL.
2. In addition, the original tribunal stated in paragraph 15 of the decision that the issue in the case was whether or not there was a contract for a particular price, not whether the price was reasonable or could be bettered in the marketplace. The original tribunal was entitled to determine, from the evidence before it, what the issue was. In doing so, the tribunal is satisfied that, based on the evidence, this course was reasonably open to the original tribunal.
3. Ground four therefore fails.

1. The appellant refers to and relies on ACL and section 19(1) of the Sale of Goods Act 1954 and submits that the original tribunal failed to give any or any sufficient weight to the fact that she had made known to the respondent that the air conditioning was for a 36 m² music studio which was only used by the tenant and that the respondent had quoted for a unit which had a bigger capacity than she needed and would cost more money. She also submitted that the respondent engaged in unconscionable conduct by installing a cheaper model and by not removing the old unit when their quote stated "remove existing unit".
2. The Tribunal refers to its findings above in relation to ACL. The appellant had annexed to her Response a letter to Mr Cengic dated 3 September 2012 sent after she had received a letter of demand from the respondent's solicitor. She stated in the letter:

"...The music studio is only 36 square meter, it has existing electrical and piping in place, your worker will only need to remove the old unit and replace with this unit of air-conditioning. Krish has shown me your cost both outdoor and indoor unit is about $1200.00.

Your company stand out as a professional and specialist in air-conditioning, if you demand for over four thousand for this air-conditioning, it is for the purpose to rip me off.

I have a very strong ground in this case if I bring it up with the department of consumer protection. I have not done this it is because I considered not to expose Krish's full time employment with you and further, jeopardise your company's future tender opportunities with any government department.

If you insist for me to pay you the amount you demanded, I have no choice but to bring this matter to the department of consumer protection."

1. Mr Goundar told the tribunal that the appellant had not provided any evidence in the form of a quotation from another company to support these claims in relation to the cost and model and whether the unit the subject of such a quote was superior or inferior. There was no comparison evidence for the original tribunal to consider.
2. As stated above, the original tribunal did refer in paragraph 10 of the decision to there being no evidence available. Further, as stated in paragraph 18 above, the tribunal notes that the original tribunal made a finding on credit which was adverse to the appellant and raised as "serious questions" the appellant's actions in allowing access to her property for the work to be carried out unless she knew the terms upon which this work was to be done and that she took no steps to raise her concerns about the cost at that time. The tribunal has already considered this under ground one above and found that this ground was not made out.
3. It appeared to this tribunal that there may have been a misinterpretation of the word "remove" in the quote. The appellant had understood that it meant that the respondent would remove the old unit from her property. Mr Goundar said that "remove" referred to the actual removal of the unit from the wall before the new unit could be fitted; it did not include "disposing" of the unit. The tribunal is satisfied that the original tribunal had adopted the respondent's interpretation when stating in paragraph 10 of the decision - "I note that the quotation did not refer to the removal of the old unit'.
4. The tribunal is satisfied that this ground of appeal fails.

1. The appellant has raised as a question of fact that Mr Neale, the respondent's engineer who had prepared the quotation, "may have known that Atlas has installed the cheaper model of the air-conditioning at the appellant's home thus has told the appellant to pay $1500-00 as the amount which is accepted by him at the end of August 2012 and the appellant has paid the informed amount on 3rd September 2012." The appellant attached a copy of a series of 'sms' messages between herself and Mr Neale in support of this ground.
2. These 'sms' messages were dated 3 September 2012, 4 September 2012 and 5 September 2012 and refer to arrangements for the appellant to deliver the cheque to the respondent. These 'sms' messages do not refer to any agreement that the appellant alleges had been reached with Mr Neale about the cost of the work in dispute. The final 'sms' message dated 10 September 2012 asks if Ivan (Mr Cengic) is ok with the cheque. The appellant has not provided any reply from Mr Cengic.
3. The appellant also told the tribunal that she had not produced the 'sms' messages at the original hearing as they were recorded on her old phone which was at her home and there was no reason why she had not produced this evidence then.
4. In response to a question from the tribunal, the appellant said that she had asked Mr Neale about the matters in the previous two paragraphs when cross examining Mr Neale but he had denied that there was such an agreement.
5. She also told the tribunal that she had an email dated 28 July 2013 from Mr Neale which she had not provided to the original tribunal. She could not put forward a reason why she had not provided this evidence. She told the tribunal that Mr Neale had included in this email that the larger and more costly unit which was installed was not available from a retail outlet and that her offer of $1500 was still unacceptable.
6. The Tribunal is satisfied that there was no acceptable reason provided by the appellant why she did not put the evidence of the 'sms' messages and the email to the original tribunal. She had this information in her possession at that time. The appellant had the opportunity to, and did, cross examine Mr Neale on this evidence at the original hearing. The original tribunal preferred the respondent's witnesses' evidence when it differed to the appellant's evidence.
7. The Tribunal is satisfied that this ground of appeal fails.

"Mr C.G Chenoweth has made his decision in error of Consumer Protection Act by making the order for the appellant/a consumer to pay for the full amount demanded by Atlas, where the air-conditioning installed was not fit in the description with the air-conditioning stated in the quotation, furthermore, the old unit of the air-conditioning still in appellant's back, Atlas's conduct was unconscionable. Thus, the appellant is entitled to deduct some money to have the old air-conditioning unit removed and paid less amount for the cheaper model of the air-conditioning unit installed."

1. This ground repeats grounds two, three, four and five which the tribunal has dealt with above.

"This appeal should proceed as Mr C.G Chenoweth's decision dated 23 April 2013 was unfair and unjust. Mr Chenoweth has not analysed and interpreted the fact and the law, further did not consider the appellant position as a consumer, who should be protected under Competition and Consumer Act."

1. The tribunal has considered the appellant's claim in relation to ACL in grounds two, three and four above.

1. It appeared to the tribunal that the appellant genuinely felt aggrieved by the original decision as she maintained that she had relied on the respondent's expertise to select and install an air-conditioning unit sufficient to heat and cool one 36 m² room and not a whole house. She was insistent that the cost had been discussed with officers of the respondent who knew that she did not want to spend more than $1,700.00 and that $4,000.00 had never been discussed, let alone agreed to. She was equally insistent that she had never received either of the quotes relied on by the respondent and that, notwithstanding the original tribunal accepting that the respondent's usual practice was to email quotes, there was no evidence that these quotes had been emailed to her.
2. The difficulty for the appellant is that the original tribunal has spoken through its written decision and that decision unequivocally stated that the original tribunal preferred the evidence of the respondent's witnesses where it differed to the appellant's evidence. The respondent's witnesses' evidence differed from the appellant's evidence in almost every significant aspect of this matter. The appellant cross examined the respondent's witnesses. While she did not present evidence of 'sms' messages and an email, she had the opportunity to give her evidence and to test her evidence when cross examining the respondent's witnesses. It was for the original tribunal to determine what weight was to be given to competing pieces of evidence. It was also for the original tribunal to determine whether there was sufficient evidence before it when deciding whether or not to make findings.
3. The Tribunal was not satisfied that the original tribunal failed to take into account relevant considerations or took into account irrelevant considerations. The Tribunal was satisfied that it was reasonably open to the original tribunal to reach the decision it did.

1. For these reasons the tribunal has decided that the decision appealed against be confirmed.

Atlas Air Conditioning Pt Ltd

[1] [2013] ACAT 52 at para 37

[2] [2012] ACTSC 140, at para 49

[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

[5] [1955] UKHL 3; [1956] AC 14 at 33-34

[6] Aronson M, "Unreasonableness and Error of Law" [2001] UNSWLawJl 26; (2001) 24(2) UNSWLJ 315 at [78]