Livock v My Fashion Republic Pty Ltd trading as Cosette

Scope and nature of internal appeals

1. 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 …
2. 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).
3. 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.
4. 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.
5. 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.
6. When parties to an appeal do not have legal representation, the issue which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant.
7. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".

Extension of time

1. The reasons were dated 16 May 2024 and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) required that the Notice of Appeal be lodged within the following 28 days, which is by 13 June 2024. As the Notice of Appeal was received on 10 July 2024, the appeal has been commenced 27 days out of time. Accordingly, the consumer requires an extension of time.
2. In the NCAT Act, s 41 provides the Tribunal with the power to extend time: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
3. The relevant considerations as to the exercise of that discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. (4) If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.

Notice of appeal

1. The grounds of appeal were expressed as follows: The order states that the bags were still being used, however, this is incorrect. The evidence provided by My Fashion Republic, was incorrect and the bags used to Authenticate were not mine.
2. Leave to appeal was sought for three reasons. First, on the basis that the decision was not fair and equitable because: (1) the amount of $4,497.49 was incorrect and the correct figure was $3,359.20, (2) it was incorrectly said that the consumer continued to use the bags from when they were purchased, up to the first instance hearing, and (3) the evidence used by the supplier to authenticate the bags was not based on the bags purchased by the consumer.
3. Secondly, it was asserted that the decision was against the weight of the evidence. That was based on the consumer's evidence being proof of purchase, a statutory declaration, and statements of authenticity for both bags, and the supplier's evidence being authentication certifications for bags that were not the bags purchased by the consumer.
4. Thirdly, it was said that significant new evidence is now available that was not reasonably available at the time of the hearing, being that the consumer had obtained a "physical review" of the bag after the hearing but was only able to have them "digitally reviewed" prior to the hearing. Copies of two pages headed "Letter of Authentication", dated 11 June 2024 were provided with the Notice of Appeal.

Reply to appeal

1. It is sufficient to record that the supplier opposed the consumer's request for an extension of time and contended that the consumer's Notice of Appeal did not identify either any error on a question of law or a basis for granting leave to appeal.

Documents

1. Documents lodged by the parties in respect of this appeal were those received from the consumer, on 30 August 2024 and from the supplier on 22 August 2024, 29 August 2024, and 10 September 2024.

Hearing

1. After introductory matters, and having identified the relevant documents, oral submissions were made, following 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 their case and to respond to the case of the other party.

Consumer's submissions

1. The consumer referred to what she did after receiving the bags, including sending them back to the supplier for authentication after which they were returned. She also referred to the steps she took after the hearing, notably taking the bags to an authenticator. It was submitted that the date and reference number in the supplier's evidence were incorrect, which was ascertained to be a difference between what Mr Solimena (an officer of the respondent) said in his statutory declaration and what was said in annexed documents to which he referred.
2. It was re-asserted that the consumer did not know there was a 28-day period in which to lodge an appeal and there was a complaint as to the manner in which the supplier's documents relating to this appeal were provided to her.

Supplier's submissions

1. Despite the hearing being the hearing of the appeal, reference was made to a miscellaneous application. However, the primary points made on behalf of the supplier were (1) that the appeal required an extension of time, and (2) that the appeal should be dismissed.
2. As to the issue of whether to grant an extension of time, after referring to the decision in Jackson, reference was made to the length of the delay, the reason(s) for that delay, the prospects of the appeal, and contended prejudice to the respondent.
3. In relation to the appeal, the points made may be summarised as (1) no error on a question of law had been shown, (2) even if the consumer's additional evidence was admitted, it also lacked probative value, and (3) that no basis for granting leave to appeal had been demonstrated.
4. The Tribunal was able to clarify that the respondent did not lead its own evidence as to authenticity at first instance but instead provided evidence said to cast doubt on the weight that should be given to the authentication evidence provided by the consumer.
5. On the question of jurisdiction, it was submitted that even if the limitation period commenced with the consumer's awareness of the issue of authenticity, that issue did not first come to her attention when she saw a television program in August 2023 because she raised the issue of authenticity with the supplier soon after she purchased the subject bags.
6. Reference was made to an Appeal Panel decision published shortly prior to the commencement of the hearing of the appeal, namely My Fashion Republic Pty Ltd t/as Cosette v Pennisi [2024] NSWCATAP 187. However, that was not permitted as no prior notice of an intention to refer to or rely on that decision had been provided to the consumer with the result that it would have been procedurally unfair to ambush the consumer with that decision.
7. Mr Kelly referred to bags being purchased indirectly, from authorised resellers rather than directly from the manufacturer. While the fact a bag is obtained from an authorised reseller may provide some support for authenticity, such evidence does not go to the specific bags purchased by the consumer. Further, the weight of any such evidence was diminished by Mr Kelly saying: "Some of the suppliers are authorised resellers", implying that other suppliers are not authorised.

Submissions in reply

1. No additional matters relevant to the appeal were raised in reply. The consumer again referred to the sequence of events which had occurred and suggested that the supplier should pursue whoever provided the bags to them.

Extension of time

1. It is necessary to consider whether to grant an extension of time for lodging the Notice of Appeal. The consumer's explanation for the delay in lodging the Notice of Appeal were that (1) she needed time to have the bags "further assessed", and (2) she was unaware of the 28-day period.
2. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their 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". It follows that a desire to obtain additional evidence does not provide any reason for failing to lodge a Notice of Appeal within time.
3. The reasons expressed by the consumer for her dissatisfaction with the first instance decision were such that they would have been apparent to her soon after she received the orders and reasons. Even a self-represented party should appreciate that the time for commencing an appeal is not open-ended. As the consumer sought and obtained the form of a Notice of Appeal, she should have sought and obtained details of the period within which that document should have been lodged.
4. Since the certificates obtained after the 16 May 2024 hearing were dated 11 June 2024, 26 days later, it is clear the consumer had determined to challenge the first instance decision within the 28-day period for commencing an appeal.
5. Further, it is noted that, despite the certificates obtained after the hearing being dated 11 June 2024, it was not until 10 July 2024 that a Notice of Appeal was lodged.
6. While the explanations provided by the consumer are less than satisfactory, in the exercise of our discretion we consider the preferable course, in this instance, is to consider this appeal on its merits and not to finalise it on what might be called a time technicality, noting that, for the reasons indicated below, that will not cause any prejudice to the supplier.

Grounds of appeal

1. The decision at first instance did not depend on whether the bags the subject of these proceedings were still being used at the time of the hearing: the issue upon which the outcome depended was whether the bags were authentic.
2. As the consumer commenced the proceedings, she bore the burden or onus of proving, on the balance of probabilities, that the bags she purchased were not authentic Gucci bags. The reasons for the decision that were provided included a determination that the consumer had not discharged that burden.
3. Since the consumer's evidence was insufficient, any deficiencies in the supplier's evidence do not have any impact on the decision because even if the supplier led no evidence to authenticate the bags, the outcome would have been the same.
4. Hence, the consumer has not identified any error on a question of law with the result that she can only succeed in this appeal if she makes good a basis for granting leave to appeal.

Decision not fair and equitable

1. Three reasons were advanced under this heading. First, that an amount was not correct. It appears that the reference in the decision at first instance to the cost of the first bag being $2,432.80 was a reference to the account balance and not the $1,295.20 cost of that bag. However, as the application was dismissed, the decision did not depend on the amount.
2. Secondly, that the applicant had not continued to use the bags. As indicated above, the decision to dismiss the consumer's application depended on whether the bags had been proved to be counterfeit (not authentic) and not whether they were still being used.
3. Thirdly, it was said that the supplier's evidence was incorrect because it was not based on the bags purchased by the consumer. To repeat what has already been said, since the application was dismissed because the consumer's evidence was considered insufficient, the accuracy or quality of the supplier's evidence did not have any impact on the outcome.

Decision against the weight of the evidence

1. Evidence upon which the consumer relied in support of her claim comprised (1) proof of the purchase of two bags, (2) a statutory declaration, and (3) two documents, each headed "Statement of Non-Authenticity": one dated 14 December 2023 and the other 17 December 2023. As the crucial issue was whether the bags were authentic or counterfeit, the outcome depended on the opinions expressed in those certificates which were obtained from Luxury Authentication Australia Pty Ltd.
2. An expert witness is permitted to give opinion evidence. However, there are matters the Tribunal needs to consider when deciding what weight to give to that evidence. The first is whether the expert has qualifications and/or experience in the relevant field.
3. Secondly, it may be relevant to consider whether the expert has read and agreed to be bound by the Tribunal's Procedural Direction 3, containing a Code of Conduct which reminds that it is the duty of an expert to assist the Tribunal and not be an advocate for the party for whom the report is provided. That aspect, which was referred to in the reasons for the first instance decision at [33], is considered below.
4. Thirdly, the decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) make it clear that, for such evidence to be accepted, the following considerations apply: (1) the expert's opinion must clearly indicate the facts upon which it is based, (2) those facts must be proved so there is a factual basis for the opinion, (3) the reasons or the process of reasoning for the opinion must be disclosed, and (4) any opinion must fall within the qualifications and experience of the expert.
5. While Makita was considering admissibility in proceedings in a court, it is well-established that the same considerations go to the weight to be given to expert evidence in proceedings in a forum where the rules of evidence to not apply, such as the Tribunal: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11.
6. The first instance decision recorded that the certificates upon which the consumer relied (1) did not identify the author(s), (2) did not state the qualifications and/or experience of the author(s), (3) did not indicate how the conclusions are based on such qualifications and/or experience, (4) did not contain anything to indicate that the author(s) had read and agreed to be bound by the Tribunal's code of conduct for expert witnesses, (5) were based on photos and not an examination of the bags, (7) did not indicate the basis or reasoning for the opinions, and (8) did not indicate how the aspects said to support an opinion of non-authenticity would differ if the bags were authentic.
7. Save in relation to the Tribunal's code of conduct for expert witnesses, those matters were correctly assessed as undermining the weight to be given to the certificates with the necessary result that the consumer failed to prove her case.
8. Omitting the code of conduct from consideration there remain sufficient reasons to conclude that the consumer's evidence was insufficient to prove her case. As the consumer's evidence on the issue of authenticity was insufficient, it is not necessary to consider the supplier's evidence on that issue.
9. Put another way, any lack of strength in the supplier's expert evidence does not operate to increase the strength of the consumer's expert evidence.
10. It is to be noted that the Tribunal's code of conduct, set out in Procedural Direction 3, does not apply to all applications. The passage which sets out when it applies, being [11], is quoted below: This Procedural Direction applies in: (a) Evidence Rules Proceedings or proposed Evidence Rules Proceedings: (b) proceedings or proposed proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989 (NSW) where the amount claimed or in dispute is more than $30,000; (c) proceedings or proposed proceedings in the Occupational Division for a "profession decision" as defined in cl 29(1) of Sch 5 to the NCAT Act; and (d) any other proceedings in which the Tribunal directs that this Procedural Direction 3 is to apply, (together referred to as "Subject Proceedings").
11. Since the application which is the subject of this appeal is not covered by any of those four alternatives, Procedural Direction 3 did not apply to any expert evidence that was submitted in these proceedings.

Significant new evidence

1. The consumer's application was lodged on 28 November 2023 and, in accordance with the normal practice of the Tribunal, there was an initial hearing on 12 December 2023 at which directions were made to provide both parties with an opportunity to provide the evidence upon which they intended to rely at the hearing.
2. Following the hearing on 16 May 2024, the consumer obtained additional evidence on 11 June 2024. There has been no explanation as to why what was done after 16 May 2024 was not done before 16 May 2024 with the result that it cannot be said the consumer's additional evidence was not reasonably available at the time of the hearing.

Leave to appeal

1. Each of the previous three claims could provide a basis for granting leave to appeal. As none of them have been established, there is no basis for granting leave to appeal. Accordingly, leave to appeal must be refused.
2. Further, in accordance with what was said in Cominos, we have (1) reviewed the consumer's Notice of Appeal, (2) the documents provided by the parties, and (3) the decision of the Tribunal at first instance. That exercise has not suggested any ground that may raise either an error on a question of law or a basis for leave to appeal.

Jurisdiction

1. In the Fair Trading Act 1987 (NSW) (the FTA), s 79L(1) requires that a consumer commence proceedings within three years of when the cause of action first accrued. The wording of that subsection is set out below: The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.
2. As the bags which are the subject of this appeal were purchased on 21 May 2019 and 6 June 2019, the consumer's cause of action accrued on those dates and any application should have been lodged within the following three years.
3. It is sufficient to record that we do not agree that the consumer's cause of action accrued when she saw a television program in August 2023, and note that the first instance decision records that the consumer "did raise the issue about authenticity of the first bag the day after purchase".
4. Any claim against the supplier should have been made by 21 May 2022 in respect of one bag and 6 June 2022 in respect of the other bag. Since the application was lodged on 28 November 2023, s 79L(1)(a) of the FTA deprived the Tribunal of jurisdiction to consider the consumer's claim.
5. Accordingly, lack of jurisdiction is a second reason why the consumer's claim could not succeed and why this appeal must be dismissed.

Costs

1. On 7 August 2024 a Principal Member granted the supplier leave to be legally represented on the condition that no legal costs may be recovered. As a result, each party should be ordered to bear their own costs of the appeal.

Orders

1. For the reasons set out above, the following orders are made: 1. The time for lodging the Notice of Appeal is extended to 10 July 2024. 2. Leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. Each party is to bear their own costs of the appeal.

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: 08 October 2024