Patterson v Trip A Deal Pty Ltd

REASONS FOR DECISION

1. The two dispositive issues in this appeal were whether the Tribunal had jurisdiction to hear the parties' dispute and whether the Tribunal gave adequate reasons.
2. For the reasons that follow the appeal is upheld.

Background

1. The appellants are residents of New Zealand.
2. In August 2019 they booked two 22-day cultural tours (one for each couple) called "Wonders of South America" for just under a total of $NZ30,000 (for all four appellants) which was due to depart in June 2020.
3. One issue before the Tribunal was whether the appellants booked that tour with (i.e.contracted with) the respondent (an Australian company based principally out of Byron Bay, NSW - "TAD AU") or Tripadeal (NZ) Ltd ("TAD NZ"), a company incorporated in New Zealand. The directors of each company were identical, and both companies were wholly owned subsidiaries of Trip A Deal Holdings Pty Ltd (incorporated in Australia).
4. Both companies had websites, the same trip was offered on both websites, but the prices differed: $AU6,999 for the trip advertised on TAD AU's website and $NZ7,399 for the trip advertised on TAD NZ's website.
5. The appellants contended they booked with (contracted with) TAD AU, whilst the respondent contended that they booked with (contracted with) TAD NZ. In our reasons below we may simply refer to "TAD" (rather than TAD AU or TAD NZ) where it is unnecessary to specify which of the entities was involved.
6. TAD AU was the respondent before the Tribunal, but TAD NZ was not a party to the proceedings. Ms Knapp, an employee of TAD AU who was authorised by that company to appear on its behalf on this appeal (and appeared on its behalf before the Tribunal) said she was also authorised to represent TAD NZ.
7. The oral evidence as to which company had contracted with the appellants before the Tribunal was less than clear for a number of reasons.
8. First, no party had lodged or served prior to the hearing before the Tribunal any witness statements setting out their testimonial evidence.
9. Second, and in breach of the Tribunal's directions, the respondent did not serve its documentary evidence upon the appellants until the working day immediately before the day of hearing (at best) or on the day of the hearing (at worst). The respondent said its documentary evidence had been emailed on that immediate past working day, but the appellants said no email had been received. The respondent emailed its documentary evidence during the hearing, and it was received by the appellants prior to the conclusion of the hearing.
10. Diverting briefly, on whichever day it was served, it was served after the time to do so set by the Tribunal had expired, and with insufficient time for the appellants to marshal their evidence in response.
11. On the appeal the appellants sought to tender documents not tendered to the Tribunal. The appellants submitted they would have marshalled and tendered these documents at the hearing before the Tribunal had they been served with the respondent's documents as directed by the Tribunal. We accept that explanation and accept that these documents were not reasonably available to the appellants at the time of the hearing before the Tribunal for the simple reason that, until the day of the hearing, they did not know what the respondent's evidentiary case was.
12. For that reason, we grant the appellants leave to appeal under section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") because we are satisfied the appellants may have suffered a substantial miscarriage of justice because significant new evidence has arisen being evidence that was not reasonably available to them at the time of the hearing per cl 12 of Schedule 4 of the NCAT Act. The significance of the evidence and why those documents' absence may have caused a substantial miscarriage of justice will be obvious from the reasons below.
13. Returning to our narrative, the third reason the oral evidence as to which company had contracted with the appellants before the Tribunal was less than clear was because the parties did not appreciate the difference between mere assertions on the one hand and evidence on the other, and much of the transcript is filled with what reads as various people (and most particularly the representative for the respondent) simply asserting the existence of various facts rather than providing evidence of the existence of those facts.
14. Fourth, the Tribunal did not, by asking questions, attempt to obtain the parties' evidence (so far as it could be given by those present) on the important factual issues.
15. Fifth, the parties were wont to interrupt or speak over another speaker or both, and most particularly the representative for the respondent, with the result that the transcript available to us is, at times, difficult to follow as sentences are unfinished (due to an interruption) or the transcriber has evidently been unable to transcribe all that was said because more than one person was speaking at the same time. Such conduct is be discouraged.
16. A further problem in deciding this appeal arises from the fact that no party provided all of the relevant documents which had been before the Tribunal. For example, the receipts for the payments made by the appellants, which seemed to be of some importance before the Tribunal and important to the respondent's submissions on the appeal, were not provided to the Appeal Panel.
17. Be that as it may, as our reasons will demonstrate, we are in a position to determine this appeal.
18. The short facts of the case are that the appellants said they booked their trips via a website operated by either TAD AU or TAD NZ (they gave no evidence as to which website they were on, nor were they - or any party - cross-examined on any evidence they gave).
19. The appellants said they received a confirmation email of their purchase from an email address ending in "tripadeal.com.au" (we were only provided with the confirmation email sent to Mrs Wade but the parties were content for us to assume that whatever written communications passed between TAD AU/TAD NZ and Mr and Mrs Patterson were replicated with Mr and Mrs Wade).
20. In that confirmation email (which was part of the new evidence tendered on the appeal) was a sentence which said "Our standard Terms and Conditions are here" with the word "here" being a hotlink. As we understand the transcript, the appellants said they clicked on that hotlink, a Terms and Conditions document appeared which they saved to their computers (Transcript p.9.9-.10). They said that if someone clicked on that hotlink now, different (updated) Terms and Conditions would appear.
21. The Terms and Conditions which appeared when the appellants clicked on the hotlink at the time were ones which named TAD AU as the contracting party and were part of the new evidence tendered on the appeal.
22. Inter alia, those Terms and Conditions contained the term that TAD AU "acts as your agent and is not the agent of any Supplier". That sentence may be significant should the appellants' contract be with TAD AU.
23. The appellants gave oral evidence that every receipt they had received was from TAD AU and not TAD NZ. Unfortunately, no party provided those receipts to us on this appeal.
24. The appellants also tendered to the Tribunal an email chain with TAD in which they asked (by email dated 11 August 2021) for confirmation that their trip was booked with TAD AU, to which they received an affirmative response later that day.
25. The appellants also tendered a number of other emails all of which came from an email address ending in "tripadeal.com.au". A small number of electronic communications were also tendered which came from an email address "noreply@tripadeal.co.nz", the appellants highlighting the fact that email address started with the word "noreply".
26. On 28 May 2020 the appellants received an email from "noreply@tripadeal.com.au" advising that their trip could not proceed due to the Covid-19 pandemic.
27. That email offered the appellants two options. First, the appellants could defer their trip to a later date without incurring a fee. Second, the appellants could receive a credit note less the unrecoverable portion of their purchases.
28. It is of importance that this offer, made in relation to the issue whether the appellants' contract was with TAD AU or TAD NZ, came from TAD AU.
29. The appellants chose the first option of deferring their trip. The appellants' deferred trip was to take place in May 2021 (Transcript 16.23).
30. Again, the May 2021 trip was cancelled by TAD (transcript 16.27) by email dated 26 April 2021 from "noreply@tripadeal.com.au" and which concluded with the address of TAD AU at Byron Bay, NSW.
31. The oral evidence was that the appellants were offered another credit note by TAD (but not a further deferral - Transcript 18.10 - .14) but have not accepted it (Transcript 16.28).
32. According to the respondent, the effect of not responding to that second offer was that the respondent treats the non-election as the appellants choosing to defer travel (Transcript 16.42), although we cannot see any contractual term which allows TAD to unilaterally make that decision.
33. Adding to the general confusion is that in evidence was a "voucher" sent to the appellants dated 2 June 2020 from "noreply@tripadeal.co.nz". This voucher is expressed as a "credit note" but in fact relates to deferral.
34. The voucher said that it had to be redeemed by the same passengers whose details were outlined in the original purchase, and that it was non-refundable, non-transferable and non-redeemable for cash.
35. On the appeal the respondent placed a great store in this last term, although we doubt it is of any contractual effect given no notice that such a term would be part of the acceptance of the voucher was ever given (on the evidence provided to us).
36. Be that as it may, the respondent contended that the appellants "must have" been on the TAD NZ website for the reason that they paid the amount advertised on that site ($NZ7,999) and not the amount advertised on the TAD AU site ($AU6,999).
37. In common with much of the respondent's case, this was asserted but not proved by evidence by the respondent despite it presumably having access to its own payment records and the payment records of TAD NZ.
38. There were some submissions made by the respondent to the Tribunal about the payments and which appear in the transcript. Suffice to say, of the many figures mentioned in those submissions, there is no clear evidence (as distinct from the respondent's assertions) as to what the appellants paid. Nor, as we understand the Tribunal's oral reasons, was a finding made about that subject.
39. The appellants accepted they paid in New Zealand dollars (Transcript 31.15), but deny they paid the New Zealand company for a trip booked through the TAD NZ website. Presumably they asserted they paid TAD AU the Australian price but converted to New Zealand dollars.
40. The respondent said that the appellants must have booked on the TAD NZ website because they were to depart from New Zealand, meaning, we infer from the transcript, that the appellants were to fly directly to South America from New Zealand as the TAD NZ brochure suggests.
41. But that was not the case. Copies of the appellants' airline tickets tendered by the respondent reveal the appellants were booked to fly from Auckland to Melbourne and then from Melbourne to South America. The TAD AU brochure expressly represented that the flights to South America would be from Melbourne and other capital cities in Australia.
42. The TAD NZ brochure does not make any mention of passengers first flying to Australia before then flying to South America.
43. The respondent's representative (Transcript 32.28) told the Tribunal that TAD had an office in New Zealand, but TAD's head office was in Australia. TAD's "call centre, everything it runs from here". She also said that if a customer called TAD they would ring an 08 number, which is a New Zealand number, but the call would then be routed through to TAD's call centre in Australia.
44. The respondent's representative (Transcript 33.1 - .4) also admitted that TAD NZ's registered office in New Zealand was actually a solicitor's office.

The Tribunal's Decision

1. The Tribunal delivered an oral, ex tempore decision and dismissed the appellants' application.
2. The Tribunal said: "That the Australian offer was something like $6,999 per person, whereas the New Zealand offer was $7,399 and it's common ground between the parties that the respondents paid for the trip in New Zealand dollars and I'm sure that they paid in New Zealand insofar as when all of the authorisations were made it was made in New Zealand to pay in New Zealand dollars. And the documents provided by the applicants seem to confirm that in so far as that there are receipts for one of the parties in the sum of $14,000 which - $14,798 which includes some surcharges and things like that. So I have to make a decision about which were the appropriate terms and conditions. The terms and conditions that the applicants refer to in pricing and payments states: 'All prices of our published travel offers are listed in Australian dollars unless stated otherwise. The published prices of the travel offer includes all Australian taxes, charges and service fees, including GST where applicable. All prices are subject to availability and can be withdrawn without notice.' And in addition, later on, where it talks about TripADeal reserves the right to cancel there's a provision there that: 'TripADeal reserves the right to charge an Australian $200 order offload fee per customer." And finally the last paragraph says: 'If you have any concerns regarding health requirements for the travel destination we suggest you refer to your health professional and/or Department of Foreign Affairs and Trade, DFAT, Smart Traveller. And for these reasons it seems to - and I find as a fact that the terms and conditions that the applicants have provided are - were the terms and conditions applicable to tickets booked through the Australian website and paid for in Australian dollars. The terms and conditions for which the respondents contend are attached to one of their documents; it's PDF called Overview GEN21/2442. And those terms and conditions state that: 'The references to TripADeal, us, we, and/or our in the following terms and conditions shall mean TripADeal New Zealand Limited, company number 6844434.' Importantly at the end of those terms and conditions clause 49 states: 'Jurisdiction and governing law, the terms and conditions agreement will be governed and interpreted in accordance to the laws of New Zealand You irrevocably submit to the non exclusive jurisdiction of the courts of New Zealand.' So on that basis, and for those reasons, I find that the agreement and the arrangements made between Mr and - Elaine Patterson and John Patterson, and Natalie Wade and Neil Wade were made between themselves and a New Zealand company, that company being TripADeal New Zealand Limited, company number 6844434 and all disputes and differences pursuant to those terms and conditions and those bookings are governed and interpreted in accordance with the laws of New Zealand. And on that basis I find that the Civil and Administrative Tribunal of New South Wales, Commercial and Consumer Division, has no jurisdiction in connection with the contract and the Fair Trading Act of New South Wales doesn't apply to the New Zealand conditions. So it is on that basis and for those reasons that this application by the applicants is dismissed in these proceedings.'
3. As we read those reasons, there was no finding as to whether the appellants paid the TAD AU advertised price or the TAD NZ advertised price. They paid in New Zealand and in New Zealand dollars, but they were residents of New Zealand and so of course they would pay from that country. It is neither here nor there that their payment started off in New Zealand currency, as it may have been converted to Australian dollars.
4. As is apparent, there was no mention in those reasons of five pieces of significant evidence that we have mentioned above and which supported the appellants' case. Those were: 1. the appellant's evidence that every receipt they had received was from TAD AU and not TAD NZ; 2. the email of 28 May 2020 from tripadeal.com.au stating that the appellants had purchased the trip "with us" and the email dated 11 August 2021 from the respondent admitting that the appellants' trip was booked with TAD AU; 3. the multiple emails from TAD AU email addresses, the paucity of emails from any TAD NZ email address, and that the only email address from TAD NZ began with "noreply"; 4. that the flight tickets were more consistent with the appellants having booked the TAD AU trip rather than the TAD NZ trip; and 5. the evidence that that the "call centre, everything it runs from" Australia.
5. In our opinion the Tribunal's reasons were inadequate. There was no explanation for the finding that the contract was made with TAD NZ, nor was there any reference to the five significant prices of evidence to which we have referred.
6. We infer from the absence of any mention of that evidence that the Tribunal overlooked it - Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62].
7. Further, as was said by McColl JA, with whom Ipp JA and Bryson AJA agreed, in Pollard at [63]: "Where, as in the present case, there is documentary material arguably supporting a party's case, that material must be considered in the judge's reasons in a satisfactory way: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J.
8. The documentary evidence to which we have referred was, it appears, not considered at all let alone in a satisfactory way.
9. In our opinion the Tribunal again erred in not attending sufficiently to the appellants' case. As Leeming JA, with whom Payne JA and Simpson AJA agreed, said in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [18]: "It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn."
10. Two other observations may be made about the Tribunal's reasons. The first is that the Tribunal held it had no jurisdiction. That finding was not necessary since, once the Tribunal found the contract was with TAD NZ, which was not a party to the proceedings, the question of jurisdiction did not arise.
11. The second observation is that, assuming TAD NZ was a party to the proceedings, the finding as to lack of jurisdiction failed to consider the terms of s 79K of the Fair Trading Act 1987 (NSW) which may have had the effect that the Tribunal did in fact have jurisdiction.
12. Section 79K says: 79K Supply or agreement made, or supply intended to be made, in New South Wales (cf CC Act 1998, s 7 (2) and (3)) (1) The Tribunal has jurisdiction to hear and determine a consumer claim only if - (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (2) The Tribunal has such jurisdiction whether or not - (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.
13. Given the respondent's assertion that the "call centre, everything it runs from" Australia, the question arose whether the services to which the appellants' claims related were supplied in NSW and thus engaged s 79K(1)(a).
14. Further, the clause in the TAD NZ terms quoted by the Tribunal expressly said that the New Zealand courts would have non-exclusive jurisdiction in relation to any disputes between the parties. It follows that under private international law and s 79K(2) there was no prima facie impediment to hearing any dispute between the appellants and TAD NZ in the Tribunal but either applying New Zealand law (if that was the law to apply and assuming TAD NZ was a party to the proceedings) or applying New South Wales law ( including the Australian Consumer Law NSW) if that law governs the relationship between the parties.
15. Earlier in these reasons we referred to fresh evidence tendered by the appellants on this appeal. Most particularly there was the confirmation email and the Terms and Conditions referred to at [21]-[24] above. It is plain that they are significant documents to the appellants' case, and the late service of the respondent's documentary evidence denied the appellants a fair opportunity to gather those documents prior to the hearing.
16. In addition to our other reasons for upholding the appeal, we would also have upheld the appeal on the basis that that we were satisfied that the appellants may have suffered a substantial miscarriage of justice because (that) significant new evidence had arisen being evidence that was not reasonably available at the time of the hearing before the Tribunal.
17. For those reasons the Tribunal's decision must be set aside and a new hearing conducted. The Tribunal will decide whether to allow the parties to give evidence additional to that they gave at the first hearing. The appellants should also consider whether TAD NZ be joined to the proceedings since the respondent's representative on this appeal said she was authorised to appear for both companies and joining it may remove the risk the appellants' referred to in submissions, namely that if they sued TAD NZ alone it may argue their contract was with TAD AU. However, that is a matter for them.
18. We should mention that the appellants raised many other grounds of appeal. However, as the errors to which we have referred are dispositive of the appeal there is no need to refer to them.

Orders

1. We make the following orders: 1. Appeal upheld. 2. The decision of the Tribunal below is set aside. 3. The matter is remitted to the Tribunal, differently constituted, to be determined according to law.

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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: 10 February 2022