Sommers International Pty Ltd v Stanthorpe Carlton United Football Club Inc

NCAT Appeal Panel|2020-05-19

REASONS FOR DECISION

The appellant (Sommers International), along with another Sommers company, was ordered to repay to the respondent (SCUFC), a football club, a sum of money that SCUFC had paid for some polo shirts and hoodies bearing the football club's logo. Sommers International appeals from that order. At the hearing of the appeal it became apparent that the other Sommers company (Sommers Sports) also wished to appeal from the order and, without objection, it was joined as the second appellant. Prior to that, it had been the second respondent to the appeal, SCUFC being the first respondent.
At the hearing of the appeal, which was conducted by telephone, Mr Nathan Rennie appeared for Sommers Sports-he is the sole director and a shareholder of that company. He is also the son of Mr John Rennie, who appeared on the appeal for Sommers International. John Rennie is the sole director and sole shareholder of Sommers International, which he said had ceased trading shortly after supplying the clothing in issue to SCUFC. John Rennie is not a shareholder in Sommers Sports.
The principal complaint that Sommers International had against the order was that it never had the opportunity to show to the Tribunal samples of the clothing in order to demonstrate (so it said) that the colour and type of clothing supplied did conform to what was ordered. Sommers Sports' contention was that it had not been a contractual party to the supply agreement.
For the reasons set out below, we have decided that the appeal should not be upheld.

Decision on 14 February 2020

The first hearing in respect of the application took place at the Penrith registry of the Tribunal on 29 October 2019. John Rennie attended that hearing. On that occasion the Tribunal made directions for a future hearing of the application on a date to be fixed, including that the "respondent" was to provide to the applicant and the Tribunal by 26 November 2019 a copy of all documents that it intended to rely upon at the hearing. A definition of "document" was set out which included witness statements and photographs.
Prior to that hearing on 29 October 2019, in a document signed by John Rennie, lodged on 21 October 2019, Sommers International had made a submission about the merits of the claim against it and Sommers Sports, which raised the same points about the merits as it made on the appeal. Amongst other things, it was said that the order was made and supplied by Sommers International in accordance with the specifications and to a quality that was acceptable given the budget price for the clothing, Sommers Sports was an independent company which did not process the order, at the hearing before the Tribunal he would produce physical samples of the garments so that they could be compared with the relevant colour board, Sommers International had ceased trading and in his retirement John Rennie assisted his son in Sommers Sports' business and SCUFC had accepted a term of the contract which allowed for minor variations of colour.
At the hearing of the appeal, John Rennie confirmed that no further written material was supplied to the Tribunal by Sommers International or Sommers Sports as required by the above direction made on 29 October 2019.
In the Notice of Appeal lodged by Sommers International, which he signed, John Rennie apologised for not providing evidence prior to the hearing on 14 February 2020 because he was under the impression that the evidence was to be presented in person at the Tribunal. At the hearing of the appeal, John Rennie said that he was not aware of the above direction made on 29 October 2019. We do not accept that this was the case in view of his presence at the hearing on 29 October 2019, the written notices of these directions posted to Sommers International and the absence of any evidence to support his claim, including sworn evidence from John and Nathan Rennie about this.
It was uncontested that John Rennie told the Tribunal at the hearing on 29 October 2019 that he had with him that day physical samples of the clothing supplied that he wished to rely upon and that these were not received by the Tribunal on that occasion on the basis that the hearing to determine the matter was to occur on a future occasion.
The hearing of the application was fixed for 14 February 2020 at the Sutherland Local Court. On 9 January 2020 the respondents sought an adjournment of that hearing. That application was refused on 13 January 2020.
There was no appearance for the respondents at the hearing on 14 February 2020. No communication was made to the Tribunal by, or on behalf of, either of the Sommers companies about their non-attendance. No communication was made to the Tribunal by, or on behalf of, John Rennie about any inability to attend due to illness.
As it was entitled to do, the Tribunal proceeded to hear and determine the application in the absence of the respondents: see Rule 35 of the Civil and Administrative Tribunal Rules 2014 which concerns ex parte proceedings in the Consumer and Commercial Division of the Tribunal.

Application to set aside ex parte decision (Regulation 9)

Following the decision on 14 February 2020, Sommers International applied to set aside the decision pursuant to Regulation 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013.
Regulation 9 (1) (b) provides: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: ……. (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
On 25 February 2020, the application under Regulation 9 was dismissed by the Tribunal. The written reasons were: The evidence provided by the applicant was detailed and clear and considered carefully by the Tribunal member. The evidence provided by [SCUFC] adequately addressed the evidence sought to new (sic) be provided by the applicant. The applicant had ample opportunity prior to the hearing to address any concerns he had with [SCUFC's] evidence, including in his written submissions, but did not do so.
No appeal from that decision has been brought.
Whilst a party is prohibited from bringing an application to set aside a decision under Regulation 9 where an internal appeal from the decision has been lodged or determined (Regulation 9 (5)), the converse is not the subject of a statutory prohibition - there is no provision which prevents the bringing of an internal appeal in circumstances where an application under Regulation 9 to set aside the decision has been lodged or determined. Precedent exists for upholding an appeal from a decision made in the absence of a party despite the Tribunal's earlier refusal to set aside a decision under Regulation 9 (1) (b): see Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41; Merrick v Zhu & Ye [2020] NSWCATAP 35.

Reasons for the decision of 14 February 2020

Relying upon the documentary evidence to which we have already referred and evidence from Ms Torrisi, the Tribunal's findings, set out in written reasons issued on 14 February 2020, included that: 1. The colour of the clothing supplied did not match the colour set out in the artwork provided to SCUFC. In particular, the colour contracted to be supplied was Pantone 7426C and instead the colour supplied was Pantone 186C. As to this, the Tribunal concluded that it was clear from the photographs that the colour ordered was a deep maroon colour whereas the colour received was a bright red colour. 2. The clothing was thin and not warm, contrary to what had been described by John Rennie in the email correspondence. 3. The purposes of buying the clothing included to distinguish the SCUFC from other sports clubs and for warmth in very cold weather. These had been disclosed to the respondents and would not be achieved by the clothing delivered. 4. As a consequence, the clothing was not reasonably fit for purpose, contrary to the guarantee in s 55 of the Australian Consumer Law (NSW), and did not correspond with the description of the goods, contrary the guarantee in s 56 of that law.
The Tribunal concluded that SCUFC was entitled to a refund of the money paid "being $7434.00". Earlier, the Tribunal had referred to the payment by SCUFC of two payments, each in the amount of $3467.00. In the circumstances, plainly, the Tribunal was mistaken in ordering a refund in the amount of $7434.00, instead of the amount of $6934.00, a matter that, as we have already said, Ms Torrisi conceded at the hearing of the appeal.
The Tribunal ordered that Sommers International and Sommers Sports were to pay SCUFC the sum of $7434 immediately. Despite the lifting of an initial stay of this order granted by an Appeal Panel, this amount has not been paid to SCUFC.
The Tribunal said in its reasons that it had considered the material supplied by the Sommers companies which was, presumably, a reference to the submission lodged on 21 October 2019, to which we have already referred.

Grounds of appeal

In the Notice of Appeal, six matters were referred to as Grounds of Appeal, namely: 1. Only Sommers International made and supplied the goods. Sommers Sports was not involved in the manufacture and supply. In support of this, a Statutory Declaration by John Rennie declared on 10 March 2020 was sought to be relied upon. 2. On the day of the hearing Mr John Rennie was too ill to attend. A medical certificate from Dr I M Doust dated 15 February 2020 and a signed statement from Ms J A Evans, a friend of Mr John Rennie, dated 15 February 2020 was sought to be relied upon. 3. A statement by the applicant regarding the colour of the items supplied was false and if Mr John Rennie had been present at the hearing he would have presented samples of the items supplied that completely match the approved colour. 4. Printed items supplied to the Tribunal by the applicant did not reflect the colour approved. 5. The Tribunal did not see an International Pantone Colour Guide that would have shown correct colours were supplied. 6. The absence of Mr John Rennie from the hearing resulted in the case not being adequately put to the Tribunal.
We treat the appellants as having advanced two errors of law. First, that there was a breach of the requirement for procedural fairness because they did not have a reasonable opportunity to present their evidence in answer to SCUFC's case. Secondly, that there was no evidence supporting the Tribunal's conclusion that Sommers Sports was a party to the supply contract, along with Sommers International. As to this second alleged error of law, we note that in the written reply submissions of Sommers International the submission is made that "SCUFC has not shown any evidence that the items in dispute were made or supplied by [Sommers Sports] as noted in the order."
These two contentions raise questions of law in respect of which no leave to appeal is required: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act); Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13].
Leave to appeal is sought by the Notice of Appeal on the grounds that the decision was not fair and equitable, was against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing.
These are grounds upon which leave to appeal might be granted by the Appeal Panel, as provided for in cl 12 of schedule 4 of the NCAT Act, as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (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).
However, it is clear from the matters referred to in the Notice of Appeal concerning whether the decision was not fair and equitable or was against the weight of the evidence, and from the appellant's written and oral submissions, that the appellants submissions were based upon evidence that was not presented to the Tribunal, rather than being based upon any error of fact by the Tribunal based upon to the material that was actually presented to it at the hearing on 14 February 2020.
The Notice of Appeal identifies the new evidence sought to be relied upon as: 1. The medical certificate from Dr Doust referred to at 33 above. 2. A colour photograph of the International Pantone Guide. 3. Colour photographs of the items supplied. 4. Colour photograph of Pantone Guide 186c over one of the items supplied. 5. Colour photograph of Pantone Guide 7426C over item supplied. 6. A copy of the above letter from Ms J A Evans.
Six additional colour photographs were provided with Sommers International reply submissions lodged on the appeal on 5 May 2020 (marked as annexures B, C, D, E, F and G).
We have received all of this evidence described in paragraphs 39 and 40 on the appeal in relation to the contention of procedural unfairness and in support of the opportunity that Sommers International contends it did not receive.
The medical certificate from Dr Doust said that he had had examined Robert Rennie that day and that in his opinion he was bed-bound on 14 February 2020 due to an episode of vomiting and prostration, likely due to a virus. (John Rennie's full name is Robert John Rennie). Plainly, this added little to what John Rennie had told Dr Doust.
Ms Evans' letter of 15 February 2020 was more detailed. She said that at 7:30 PM on 13 February 2020 she witnessed John Rennie in a state of ill-health-he had a temperature, was vomiting and complained of a severe headache. She said that he did not improve until about 2 PM the following day. She said that she tried to schedule an appointment with his general practitioner on 14 February 2020 but the first available time was on 15 February 2020.

Submissions

According to directions made by an Appeal Panel on 24 March 2020, Sommers International, at that time the only appellant, was directed to lodge with the Tribunal and provide to SCUFC by 14 April 2020 all the evidence provided to the Tribunal below on which it intended to rely and its written submissions in support of the appeal (along with some additional material). No such documents were provided by Sommers International on the appeal.
The only written material provided by Sommers International, apart from the Notice of Appeal, was a reply lodged on 5 May 2020, with annexures, consisting of 11 pages, to the written submissions of SCUFC which had been lodged by SCUFC on 24 April 2020 in compliance with the above directions.
On 5 May 2020, Sommers Sports lodged a one-page written submission in response to those of SCUFC. This was provided under the name of Nathan Rennie. In this submission Sommers Sports contended that it had never contracted to supply, and never supplied, clothing to SCUFC. It contended that it received a payment from SCUFC after it had agreed to a request from Sommers International for that company to use a bank account of Sommers Sports following the closure of Sommers International's bank account. The written submission further contended that when the payment was received the funds were paid out, at John Rennie's request, to an account which he had nominated. It was said that these points would be confirmed by Nathan Rennie under oath at the hearing of the appeal.
No evidence to this effect was presented by Sommers Sports to the Tribunal at first instance. There was no explanation as to why that had not occurred and no explanation as to why Nathan Rennie did not appear for Sommers Sports, and for Sommers International at the hearing on 14 February 2020.
In its reply submissions lodged on 5 May 2020 Sommers International, by reference to the photographs annexed to the submissions, which it accepted were not presented to the Tribunal at first instance, submitted that the colour of the goods supplied was almost identical to the approved colour, which was Pantone number 7426C, and that it was the thermal quality of the goods, not their thickness, which determine whether they were suitable for use in cold weather. It also submitted that SCUFC had not provided any evidence that the items in dispute were supplied by Sommers Sports and that it was not that company which had contracted to supply the clothing. As to this, it was pointed out that the ABN number given in the invoice for the clothing dated 23 February 2019 under the name of Sommers Sports was, in fact, the ABN number for Sommers International.
In his oral submissions, John Rennie reiterated these submissions. He also referred to the credit of $500 that had been applied to the invoice which meant that any order for a refund should be for the sum of $6934 and not $7434.
In his oral submissions, Nathan Rennie reiterated what was set out in the written submission he had supplied on behalf of Sommers Sports.
In its submissions on the appeal, including what was set out in the Reply to the appeal, SCUFC submitted that: 1. The Tribunal's conclusions were correct based upon the material that was presented to it, which in turn was based upon the printed version of the electronic correspondence, including photographs of artwork, that were sent to it by Mr John Rennie. The supply contract had been based upon the visual presentation of the clothing contained in that electronic correspondence and not upon any other basis. 2. There was no reasonable explanation from the Sommers companies why the documentation they wished to be rely upon was not provided to the Tribunal prior to the hearing on 14 February 2020. 3. There was no reason why another officer, employee or representative of the Sommers companies, other than John Rennie did not appear at the hearing on 14 February 2020.
SCUFC, in its submissions, sought to present new photographs of the visual presentation of the clothing that was sent by John Rennie in connection with the supply contract. At the hearing of the appeal, Ms Torrisi explained that she had done this because she understood that there was an opportunity on the appeal to present better versions of the photographs than had been presented before the Tribunal at first instance. We have not accepted these new photographs as evidence on the appeal. There is no basis upon which it could be said that these were not reasonably available at the time of the hearing at first instance and we have not decided that we should conduct a new hearing of the claim pursuant to s 80 (3) (a) of the NCAT Act.

Error of Law

We do not agree that any procedural unfairness to the appellants has occurred.
Under s 38 of the NCAT Act the Tribunal is required to comply with the rules of natural justice (s 38 (2)) and to: 38 (5) …..take such measures as are reasonably practicable - ….. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
This requirement derives from the common law, in respect of which Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
We do not see any failure by the Tribunal to comply with these requirements. In the first place, the appellants had the opportunity to do so but did not supply any documents, including photographs of the colour of the clothing supplied matched with the relevant Pantone colour guide, in support of their defences prior to the hearing on 14 February 2020, contrary to the terms of the directions made on 29 October 2019.
Next, it was uncontroversial that notices of the hearing on 14 February 2020 were sent to the appellants. Clearly, Mr John Rennie was aware of that hearing date and there was no evidence that no representative of Sommers Sports was aware of the hearing date. It would be strange if John Rennie had not informed his son, Nathan Rennie of the hearing date. Despite this, there was no explanation why Nathan Rennie did not appear at the hearing on behalf of both Sommers Sports and Sommers International, in circumstances where his father was too unwell to attend, and show the Tribunal any physical samples and photographs they wished to rely upon and otherwise support the written submission lodged on 21 October 2019, including why it was said Sommers Sports was not liable.
Furthermore, there was no explanation as to why there was no communication to the Tribunal and SCUFC on 14 February 2020, before the time of the hearing, as to why neither of the Sommers companies would be attending the hearing. Had this occurred, one possibility is that the hearing might have been adjourned if, for example, the appellants had been able to persuade the Tribunal that there was a reasonable explanation why Nathan Rennie could not attend the hearing and it was otherwise in the interests of justice that there be an adjournment.
As we have already mentioned, the Tribunal was entitled to proceed and determine the matter in the absence of any appearance for the Sommers companies. We note that the Tribunal's reasons disclose that it properly considered the question of proceeding in the absence of these parties, having regard to the terms of Rule 35 of the Civil and Administrative Tribunal Rules.
As to the second alleged error of law, we do not agree that there was no evidence for the Tribunal's conclusion that Sommers Sports was a party to the supply contract. This was a conclusion that needed to be made on the basis of the evidence of communications between the parties viewed objectivity rather than upon the subjective intention of the Sommers companies. In particular, there was the invoice for the clothing issued in the name of Sommers Sports, which also specified the means by which the contract price could be paid to that company, as one means by which the contract price could be paid. The fact that the ABN number given under the name of Sommers Sports was the ABN number for Sommers International did not make these specific references to Sommers Sports insignificant. Furthermore, there was the email from Nathan Rennie on behalf of Sommers Sports sending the invoice to SCUFC.

Leave to appeal-decision not fair and equitable

For the same reasons given above concerning procedural fairness, we reject the contention that the decision was not fair and equitable, within the meaning of cl 12 of Schedule 4 of the NCAT Act, in so far as that contention was based upon the alleged lack of opportunity to have the Tribunal consider the material that the Sommers companies wish to rely upon in defence of the application.
But, as we understood it, the Sommers companies also contended that the decision was not fair and equitable within cl 12 of Schedule because of an error by the Tribunal based upon the material that was presented to it at the hearing on 14 February 2020. This contention seemed to be based on the fact that the terms and conditions of the supply contract permitted a degree of variation in the colour supplied from that ordered. That was referred to in the submission lodged on 21 October 2019.
The term of the contract that the Sommers companies relied upon was: Whilst we take every precaution to ensure that the goods we produce will look like those depicted in the Visual Presentation and Production Layout, actual colours and location detail on the goods produced may be subject to minor variations and modifications in the production process due to die lots, material sourced or other factors stop In giving your approval, you consent to such minor variations and modifications.
The first problem for the appellants with this contention was that on their case "[n]o colour variation occurred": paragraph 2 (c) of section Bi of the Notice of Appeal. In other words, it was the appellants' case that not even a minor variation in colour had been supplied.
The second problem was that it was the Tribunal's finding that instead of a deep maroon colour, the clothing supplied was a bright red colour. Such finding did not permit a conclusion that there was only a minor variation in the colour supplied. That conclusion is further supported by the Tribunal's rejection of any argument that the difference in colour was small or unreasonable, albeit without express reference to the above term of the contract, although, presumably, the Tribunal had in mind the contention based upon this term of the contract set out in the appellants submission lodged before the hearing on 21 October 2019.
In any event, in view of these conclusions about the colour that the Tribunal arrived at upon the material that was presented to it, we are not satisfied that the appellants may have suffered a substantial miscarriage of justice based upon the alleged application of this term of the contract, nor that the appellants have suffered an injustice which is reasonably clear for the purposes of the grant of leave to appeal or that there has been an error which is plain and readily apparent such that it would be unjust to allow the conclusion to stand.
In this regard, we apply what was said about this subject by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84], namely: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Leave to appeal-decision against the weight of the evidence

This ground of appeal cannot succeed because it is based entirely upon evidence that the appellants say they wished to present to the Tribunal but did not do so.

Leave to appeal-new evidence

As already mentioned, we have received and considered all of the new evidence identified by the appellants for the purposes of the procedural unfairness ground of appeal. Otherwise, we reject the ground of appeal based upon new evidence because the appellants have not shown that any of this evidence was not reasonably available at the time of the hearing on 14 February 2020.

Orders on the appeal

For the above reasons, we make the following orders: 1. Sommers Sports Pty Ltd is made the second appellant on the appeal and is removed from being the second respondent on the appeal. 2. The appeal is allowed in part. 3. Set aside the Order made on 14 February 2020 and instead order that Sommers International Pty Ltd and Sommers Sports Pty Ltd are to pay Stanthorpe Carlton United Football Club Inc the sum of $6934.00 within 7 days. 4. The application for leave to appeal is refused. 5. The appeal is dismissed.

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 June 2020

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