Stafford v On Water Services Pty Ltd t/a Batemans Bay Marine

Relevant Law: The nature and scope of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) of the NCAT Act.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exhaustive list of questions of law. 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 has 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; and 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
3. 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 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), 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.
5. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Notice of Appeal

1. The appeal was commenced on 19 December 2023 date and was, therefore, filed within time: see Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 NSW.

Reply to Appeal

1. In its reply to appeal filed on 2023 the respondent supports in full the orders made on 15 August 2023.

Grounds of Appeal

1. The notice of appeal sets out the grounds of appeal. It is necessary to set out the appellant's grounds of appeal in full: The Tribunal heard the proceedings made an error on a question of Consumer Law based on the Summary of Evidence dated 23 August 2023, copy attached. An inconsistency between the order and an adequate reasons for the conclusion of the application without written reasons for the dismissal. The NCAT made an error of law by failing to give an adequate explanation of its reasoning processes. The Tribunal misapplied the Law to the facts that it found by way of evidence of functional findings. The NCAT made an error of law failing to take into account the factors stipulated in the current enabling NSW legalization. The NCAT have not taken into account current Consumer Law in NSW in respect to retail purchases. Without prejudice it is the appellant conclusion that the Register on the day of the hearing showed considerable favour towards the respondent and bias towards the appellant. A clear injustice in applying procedural fairness to all parties.
2. In a section entitled General Observations the appellant wrote: Based only on the fact that the Respondent provided a refund for the original outboard motor bracket it would seem that the Register decided the judgement of dismissal on this point alone without being across the weight of written evidence the Appellant provide to NCAT as required. In addition the incontinency in the affidavit of Hayden McDonald examples are points 3,4 dates incorrect and No 7 should have been considered. These points are just down and out contradiction of what transpired at purchase time.
3. Mr Stafford was not legally represented and not legally trained. Consistently with our obligation to a self-represented litigant we have sought to distil in a beneficial manner from the appellant's Notice of Appeal, submissions and evidence any recognisable grounds of appeal, including whether any questions of law may be involved: see Ros v Commissioner of Police [2020] NSWCATAP 70 at [21]; Pollock v Hicks [2015] NSWCA 122 at [91] and Cominos v Di Rico [2016] NSWCATAP 5 at [13] (Cominos).
4. In Cominos at [13], the Appeal Panel stated that 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 in s 36(1) of the NCAT Act, 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.
5. We identify from the Notice of Appeal that the appellant seeks to raise the following grounds of appeal: 1. The Tribunal misapplied the law to the facts and failed to take into account the provisions of the Australian Consumer Law (NSW) (ACL NSW); 2. The Tribunal displayed bias against the appellant; 3. The Tribunal failed to give adequate reasons; 4. The decision was against the weight of the evidence as outlined in the appellant's summary of evidence.
6. We note that ground 4 does not raise a question of law and would require the grant of leave to appeal.

Grounds 1 and 4: The Tribunal misapplied the law and failed to apply the ACL and the decision was against the weight of evidence.

1. It is convenient to deal with these grounds together.
2. The appellant's grounds of appeal were supported by submissions filed and served on 27 February 2024. In a discursive letter entitled "summary of evidence" annexing attachments [A] to [F] the appellant provides evidence filed at the hearing below as well as his written submissions. It is the appellant's contention that he discussed the use of the outboard motor and bracket with the respondent's representative who assured the appellant that the bracket would fit his particular transom and that the appellant purchased the outboard motor and bracket package in reliance upon the assurance that the product would be fit for purpose. When the outboard motor was delivered, there was "unacceptable side way movement and completely unsafe operation when the supplied kicker bracket and outboard motor were installed onto the boat's transom". Critically the appellant states in his submissions attached to the notice of appeal that the "bracket is substantially unfit for its common purpose". The appellant returned the bracket to the respondent and was provided with a refund.
3. The gravamen of the appellant's case was that he is "entitled to a full refund under Consumer Law". He states that the 9.9 horsepower engine and bracket were selected by the respondent, the appellant accepted the respondent's recommendation but as the engine could not be used by reason of the ill-fitting bracket, he was entitled to a refund for both: "Batemans' Bay Marine agreed that the combination of the bracket and motor were not fit for purpose then supplied a refund for the bracket and committed to source another more suitable bracket" (see reply submissions dated 13 March 2024).
4. The first time the respondent was put on notice that the appellant was seeking a refund was on 17 April 2023, eleven months after the transaction of 28 March 2022, and after the Department of Fair Trading contacted the respondent. The respondent refused to refund the full amount because the appellant admitted that the outboard motor was not faulty and the appellant had been in possession of the engine for eleven months. The parties were unable to resolve their dispute.
5. In dismissing the appellant's claim, the Tribunal did not find that there was any breach of the Consumer Guarantees under the ACL NSW. The question to be determined is whether the appellant was entitled to return both the outboard motor and the bracket in the event that the bracket did not fit onto the transom of the appellant's boat. The appellant maintains it was an essential part of the agreement that he was entitled to return both outboard engine and bracket as they were sold to him as one item. The respondent maintains that they are two separate items and that the ill-fitting bracket was returned and a full refund was provided. However, the engine, which was subject to a separate and distinct transaction, was not faulty, and therefore the respondent was under no obligation to provide a refund, particularly as the appellant had been in possession of the engine for eleven months.
6. As we understand the appellant's case, in the absence of articulated grounds of appeal, and having regard to the original application form, the appellant proceeds on a singular cause of action, namely that the respondent is in breach of the Consumer Guarantees, specifically s 55, which provides: 55 Guarantee as to fitness for any disclosed purpose etc (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
7. In her reasons for decision the Member made the following critical findings: 1. The appellant conceded there is nothing wrong with the 9.9 horsepower engine; 2. The appellant remained in possession of the engine for several months before seeking a refund; 3. The appellant conceded that there are many brackets on the market that would have allowed the outboard motor to be fitted onto the transom of his boat and that such brackets retailed for between $115 and $148;
8. In light of these findings we are not satisfied that the appellant has established any error on the part of the Tribunal. The ground of appeal advanced by the appellant is simply that "the appellant under the Australian Consumer Law has a right to a full refund."
9. The consumer guarantee provisions of the ACL NSW, including s 55, fitness for a particular purpose, are found in Div 1 of Pt 3-2. Remedies available to a consumer for failure to comply with a consumer guarantee are contained in Part 5-4 of the ACL NSW. They include s 259(3), which provides that, subject to s 262, a consumer is entitled to reject goods which cannot be repaired or where the failure to comply with a guarantee is a major failure, and s 263, which provides that, where a consumer rejects goods, the supplier must, if the consumer so elects, refund the money paid by the consumer for the goods.
10. To be entitled to a remedy under s 263 against the respondent, in respect of the alleged failure to comply with the guarantee, the appellant was required to establish that he was a "consumer" within the meaning of s 3 of the ACL NSW and that the respondent supplied, in trade or commerce, goods to him. Those criteria were not in contention.
11. Section 260 of the ACL NSW governs when a failure to comply with a guarantee is a major failure. Relevantly, a failure is a major failure if the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose (see s260(1)(c)). We proceed on the basis that the appellant claims to have rejected the motor by reason of a major failure and seeks a refund of the purchase price pursuant to s 263 of the ACL NSW. We do so having regard to the requirement for the Tribunal to act "with as little formality as the circumstances of the case permit and according to … the substantial merits of the case without regard to technicalities or legal forms" under s 38(4) of the NCAT Act. See also Moloney v Taylor [2016] NSWCA 199 at [30] - [31].
12. However the impediment remains that the appellant has failed to establish that the outboard motor suffered from a major failure because it was not fit for its intended purpose. The Tribunal's findings, which have not been appealed, establish that there was no inherent defect in the outboard engine and that a modestly priced bracket, available on eBay for around $150 would have enabled the appellant to affix the engine to the transom of his boat. There was no evidence served by the appellant of loss arising otherwise than in respect of the payment of the price of the motor. We consider that the appellant has failed to establish that the engine, as opposed to the bracket, was not fit for purpose.
13. We do not consider that there was any error in the Tribunal's application of the provisions of the ACL NSW, nor do we consider that there was any error in the Tribunal's assessment of the evidence. It cannot be said that the decision was against the weight of the evidence. Accordingly, the first ground of appeal must be dismissed and leave to appeal on the fourth ground must be refused.

Ground 2: The appellant claims the Tribunal was biased

1. The second ground raised by the appellant is that the Member was biased. The appellant submits in his grounds of appeal that the Member on the day of the hearing "showed considerable favour to the respondent and bias towards the appellant. A clear injustice in applying procedural fairness to all parties". We accept that this raises a question of law.
2. As we have noted above, the appellant was unable to provide a transcript as he was informed by the registry that there was no recording available of the hearing that was conducted in Batemans Bay Court House. In the absence of a transcript or sound recording, it would have been appropriate that the appellant provide an affidavit, or at least a statement, setting out his recollection of the course of the hearing, including specifying exactly what he alleges was biased conduct. However, no particulars, evidence or submission has been advanced in support of this ground of appeal. We consider that this allegation is unfounded and unsupported by any evidence, or even detail. The allegation rested upon nothing more than the appellant's assertion of bias and favouritism.
3. Accordingly, we reject this ground of appeal.

Ground 3: Inadequacy of reasons

1. Where reasons are required, the question whether adequate reasons have been provided for a decision is a question of law. We have considered whether the Tribunal's reasons for decision in respect of the claim as articulated by the appellant are adequate.
2. The principles relevant to adequacy of reasons were set out by Bell P (as he then was) in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr). These principles were helpfully summarised as follows by the Appeal Panel in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 (Saad) at [58]: 1. The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. 2. The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. 3. As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court. 4. Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party): 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. 2. It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. 3. Reasons need not be elaborate. 4. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 5. The court should not read passages from the reasons for decision in isolation from others to which they may be related. 6. The reasons must be read fairly, and as a whole. 7. The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. 8. There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips.
3. We consider that the Tribunal's written reasons for decision meet the minimum acceptable standard. The Tribunal set out clear reasons for its findings of fact in respect of the outboard engine, namely the appellant's failure to establish any reason why the engine was not fit for its intended purpose, which explained why the appellant was not entitled to a refund. The decision must be read also in the context of the appellant's failure to articulate a cause of action, other than to state he is entitled "to a refund under the Australian Consumer Law".
4. We are not satisfied that the Tribunal erred with respect to a question of law in respect of this ground of appeal.

Leave to appeal

1. We have addressed above in dealing with ground 4 the question whether we should grant leave to appeal on the basis that the decision was against the weight of the evidence and determined that the grant of leave on that basis would not be justified. The appellant has not established either of the other grounds for leave to appeal set out in cl 12 of Schedule 4 of the NCAT Act. Moreover, we do not consider that the appellant has shown that he would suffer a substantial miscarriage of justice if the decision is allowed to stand.

Orders

1. For the above reasons, we order that: 1. Leave to appeal is refused. 2. 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: 15 July 2024