The appellant is a freight forwarder, who apparently engages in a business styled as "Sunset Freight."
In October 2019, he contracted with the respondent to send 184 kg of clothing and other donated items to Fiji, for charitable purposes.
Singh v Singh [2020] NSWCATAP 114 | Case summary | Zoe
It is undisputed that the proper cost for the air transport of this weight of goods was $294.00.
The respondent was eventually charged the sum of $1,150.00, being the cost of transport of 450kg of airfreight. She was required to pay the balance to secure release of the freight in Fiji.
The respondent claimed, from the appellant, a refund in the amount of $856.00, by way of an application to the Consumer and Commercial Division, which was determined on 4 March 2020 in file GEN 20/04442.
The respondent's claim for that amount was as a remedy under the Fair Trading Act 1987 (NSW) (the FTA), s 79N. There is no dispute that the Tribunal had jurisdiction to make the order sought.
The appellant did not attend the hearing nor lodge any material to defend the respondent's application.
The Tribunal was satisfied that it was appropriate to make an order under section 79N of the FTA that the appellant refund to the respondent the sum of $856.00, as a "refund of excess charges above price paid for air freight of goods from Sydney to Suva, Fiji and additional cost for release of the goods in Suva" (the Decision).
The appellant lodged a Notice of Appeal on 17 March 2020.
Whilst the appellant sought an extension of time for lodging the Notice of Appeal he indicated, and there is no evidence to the contrary, that he in fact received notice of the Decision on 11 March 2020, meaning that the appeal was lodged within time.
In explanation of his failure to attend the hearing the appellant says in the Notice of Appeal:
Due to severe flu and in panic I thought that I had a corona virus as I had travelled from overseas few days earlier and I did not want to endanger members of the Tribunal and the general public and thus I could not attend the Tribunal and was unable to provide facts to this matter (sic). I am really sorry that I could not attend the Tribunal in this corona virus panic. I even forgot to phone you-I was really very frightened and panicked of this deadly virus (sic).
In support of the appeal, the appellant has filed the material he says would have provided a defence to the application made by the respondent. That material includes evidence that, in respect of overseas shipping of material by air that is voluminous but not correspondingly heavy (such as the clothing transported in relation to this matter), the freight is commonly charged on a volumetric basis, where a notional weight is assigned corresponding to volume, rather than an actual gross weight basis.
The appellant has provided a copy of a printout from a webpage from "American Export Lines" explaining that situation, together with other documents indicating that other air freight transporters would deal with the calculation of the air freight in a similar manner.
The appellant says that the appeal should be allowed due to his non-presentation of evidence before the Tribunal below and because the respondent was "rightly charged by Sunset Freight for the services rendered."
The appellant also claims that the respondent "agreed with the cost, signed the documents and receipt was provided on the spot on the day of collection of cargo."
The Appeal Panel made directions for lodgement and service of evidence and submissions in the appeal and determined that the appeal should be decided on the papers and a hearing dispensed with.
The matter is before us for determination on that basis
[2]
Scope and nature of Internal Appeals
If the appellant can establish that the appeal raises an error on a question of law, the appeal may be prosecuted as of right: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 80(2)(b).
If the appellant raises an error other than in respect of an error on a question of law he requires permission (that is, "leave") to appeal: NCAT Act, s 80(2)(b).
As confirmed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, leave to appeal is only usually granted in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application;
3. 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;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. 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.
Where, as here, the appeal is from a decision made in the Consumer and Commercial Division, there is a further qualification to the possible grant of leave in that we may only do so if we are first satisfied that cl 12(1) of Sch 4 of the NCAT Act applies, in that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
[3]
Consideration
The appellant acknowledges that he requires leave to appeal and that the appeal does not raise issues on a question of law. We agree with that assessment.
We are not satisfied that we should grant leave to appeal.
Even if we could be satisfied that the terms of cl 12 of Sch 4 were met, in that the appellant may have suffered a substantial miscarriage of justice on the basis that the decision was not just and equitable having been made in his absence, nothing in the material filed by the appellant includes any evidence that the respondent entered into a contract for the freight to be calculated and charged on a volumetric basis.
The waybill put into evidence by the appellant in the appeal, numbered 2511692, whilst referring to a 430kg 'charge' despite noting '184' (presumably as to the actual weight of the goods) is not signed by the respondent .
Further, whilst charging air freight on a volumetric basis for large but light items may be an acceptable practice within the industry, there is no evidence put before us by the appellant that he made the respondent aware of this or that the respondent agreed to have the goods transported on that basis.
The appellant has simply failed to lodge in the appeal any probative evidence which would indicate that the Decision was made on an erroneous basis.
We also note that the appellant has not provided any evidence to support his submission that he could not attend the Tribunal hearing due to severe flu. Absence from a hearing on medical grounds should generally be supported by a medical certificate which is specific, which clearly states that the person is unable to attend a hearing and which indicates the precise nature of the illness which prevents attendance: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]-[5]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [20]-[23]; Lameh Mourad v Omar Aly [2015] NSWCATAP 49 at [21]. Whilst the appellant's ability to see a medical practitioner may have been affected by the coronavirus pandemic, he gave no evidence to that effect.
Finally, there is no issue of principle or public importance raised by the appeal which is, in any event, in relation to a reasonably modest quantum.
Leave to appeal is refused and the appeal is dismissed.
[4]
Orders
1. Leave to appeal is refused.
2. The appeal is dismissed.
[5]
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: 18 June 2020