Street v Finessence Pty Ltd

The Tribunal's Reasons

1. In written reasons the Tribunal sets out details of the application and the history of the proceedings including the details of the orders made at directions hearing. The reasons record the evidence and submissions, and deal with the appellant's two major claims separately.
2. The first of those claims was that the Boatbags were defective. The Tribunal reasons referred to the appellant's documents including a "timeline" prepared by the appellant and photographs. The Member found that the photographs did not demonstrate the matters alleged by the appellant, being defects of stitching or deterioration of the material of which the bag is made. The Member went on to say "while the appellant asserted the bags had defective stitching and deterioration of material, no corroborating evidence of that assertion has been presented to the Tribunal. The Tribunal is therefore not able to make a finding on these matters." On that basis, the Member did not accept that the appellant's evidence proved the assertions he made of defective quality.
3. The second of the appellant's claims was that the Boatbags caused damage to his boat. The Member reviewed the evidence of the appellant, noting that the appellant gave opinion evidence on the damage he had observed but did not lead any evidence as to his training and experience to give opinion evidence. The appellant had otherwise provided copies of invoices for work done on the boat by Newport Marine Services. In the circumstances, the Member was unwilling to draw an inference that the proximity of the hull to the bags, as shown in the photographs, was sufficient to make a finding of fact that the bags caused the damage to the hull. The Member said "the capacity of a plastic material to damage a boat hull is unknown and the appellant's evidence was insufficient to enable the Tribunal to find that such material had, on the balance of probabilities, caused the damage claimed." The Member found a brief reference in emails as to the cause of the damage, was insufficient.
4. Accordingly both parts of the application were dismissed.

The Appeal

1. The appeal was commenced within time. The stated grounds for appeal appear to be a re-arguing of the case that was dismissed below. However, after discussion in the appeal hearing, the appellant's grounds can be stated as: 1. denial of procedural fairness, in allowing the respondent to rely upon documents filed and served late; 2. the decision of the Tribunal is not fair and equitable in that the Tribunal Member did not understand the appellant's documents; 3. the decision of the Tribunal was against the weight of the evidence; and 4. significant new evidence has arisen that was not reasonably available at the hearing.
2. The appellant seeks orders varying the order of the Tribunal or remitting the matter to be heard and decided again.
3. The appellant appeared in person. At the hearing of the appeal, the appellant relied on a number of documents in two bundles, one entitled "Appeal - Timeline Document". This was in a black folder and will be called the "black folder". The second bundle was headed "Book 2: Appendix". This was in a white folder and will be called the "white folder". The appellant clarified at the appeal hearing that he had included in these documents some documents which were not before the Tribunal below, including pages 17 and 26 of the black folder.
4. Mr Clarke appeared for the respondent company. He told the Appeal Panel that in fact he was not a director of that company but his wife was a director as was Mr Capiron. He said the Tribunal Member below must have been in error in recording that he was a director of the company. The Appeal Panel was satisfied that he had the authority of the company to represent it.
5. The respondent did not provide any documents in the appeal. There was a direction that it provide documents by 30 May 2017 including evidence before the Tribunal below on which it intended to rely and written submissions. Mr Clarke said that he had misunderstood the Tribunal's direction but wished to proceed with the hearing nevertheless.
6. The respondent's Reply to the Appeal endorsed the reasoning of the Tribunal Member below. It noted that there was another potential respondent namely Successco Pty Limited, the manufacturer of the Boatbags, however Mr Clarke conceded that no formal steps had been taken to join this company to the proceedings. As it was not a party to the proceedings below and neither party had sought that it be joined to the appeal, the Appeal Panel proceeded on the basis that Finessence Pty Ltd is the appropriate respondent.
7. The respondent disputes there was a denial of procedural fairness and says that the late documents had no effect upon the outcome, and that leave to appeal should not be granted as the appellant should not be allowed to rely on additional evidence, and it is not the case that the decision was not fair and equitable or against the weight of the evidence.

Is leave to appeal required?

1. Subject to the issue as to fairness to the respondent, where the Appeal Panel determines that an error of law is raised in the material before it, even if not identified by an unrepresented appellant in the Notice of Appeal, it ought to deal with that identified error on the appeal: see Prendergast v Western Murray Irrigation [2014] NSW CATAP 69 at [12]. We would regard the appellant's complaint, as explained at the appeal hearing, as a complaint that the Tribunal ought to have refused to admit the respondent's late documents. When viewed in this way, it is a complaint of a denial of procedural fairness and raises a question of law and leave to appeal is therefore not required: Clements v Independent Indigenous Advisory Committee (2003) FCAFC 143; 131 FCR 28 at [8]; Italiano v Carbone [2005] NSWCA 177 at [5].
2. In respect to the other grounds raised, however, as no question of law is raised and the appellant seeks to rely on his assertion that the decision was not fair or equitable or was against the weight of the evidence, leave is required: s 80 (2)(b) Civil and Administrative Tribunal Act (NSW) 2013 ("CAT Act") , and cl 12 of Schedule 4 of that Act.

Ground 1 - Denial of Procedural Fairness

1. The appellant said that the bundle of respondent's documents which were admitted at the hearing should not have been admitted because if he had known about them in sufficient time he would have been able to better prepare his own case and obtain better expert evidence.
2. As to whether a complaint was made at the time, the Appeal Panel notes the comment of the Tribunal Member at paragraph 8(b) of his reasons that the issue was not raised by the appellant at the hearing on 15 March 2017. The appellant says it was raised, and supplied a copy of the sound recording from the Tribunal below. The appellant had prepared an index of the sound recording, including a statement that he had made complaint about the late admission of the respondent's documents including at the 7 minute mark and the 37 minute mark. The respondent did not agree that the transcript was accurate. Accordingly the Appeal Panel has listened to the relevant parts of the sound recording.
3. At around the 7 minute the appellant states that he had received the documents by email the previous Friday and they were delivered the day before the hearing, however while he commented that it was "unfortunate", the appellant did not request that the documents not be admitted. Notwithstanding the late provision of the documents, the appellant was clearly able to respond to them, noting at that point that he had obtained a document from Water Police in response. Later in the hearing the appellant referred again to the late documents, noting at around 25 minutes that he had not had a lot of time to respond. At no time during the hearing did the appellant refer to any specific disadvantage through late service of the respondent's documents. Based on the sound recording, we are satisfied that the Member's comment in paragraph [8] of his reasons was an accurate reflection of the conduct of the hearing.
4. However, the fact that the appellant did not complain at the time about the late service of the documents is not determinative of the issue, since the content of the rules of procedural fairness might require, where a party is self-represented, that the documents be excluded or an adjournment be offered. The question as to whether there was a denial of procedural fairness requires consideration of whether the admission of the respondent's documents provided after the date specified in the procedural directions, had any bearing on the outcome of the case.
5. The decision of the Tribunal below was clearly based upon the appellant's evidence and the Member's assessment of the short comings of it, and the Member did not rely upon the respondent's documents at all but relied only upon the appellant's evidence on both arms of the appellant's case, namely the defective bags and the boat damage.
6. In the course of the hearing of the appeal the appellant said that some of his evidence is in the respondent's evidence, which the Appeal Panel understood to be a submission that if he had had access to the respondent's evidence earlier he could have better prepared his case. Secondly, he said that if he had been aware of the defendant's evidence he would have obtained better expert evidence to prove the causal connection between the damage to his boat and the use of the Boatbags.
7. Neither point persuades us that a denial of procedural fairness has occurred in allowing the respondent's late documents to be admitted. That is because we are not persuaded that the Tribunal Member below relied upon those documents in the process of reasoning towards the conclusion to dismiss the appellant's case.
8. The appellant was the applicant in the proceedings below, and had the onus of proof. If the appellant did not have adequate proof to establish his claims, then it is no argument to say that he would have better prepared his case if he had been aware of matters in the respondent's documents. The appellant cannot assert that the respondent owed him some obligation to draw his attention to weaknesses in his own case.
9. There was no denial of procedural fairness, and no error of law has been established.

Grounds 2 & 3 - Not fair and equitable or against the weight of the evidence

1. The appellant contends that the decision of the Tribunal under appeal was not fair and equitable or was against the weight of the evidence. This does not raise a question of law and by reason of section 80(2)(b) of the CAT Act the appellant requires the leave of the Appeal Panel to pursue these grounds.
2. In Collins v Urban [2014] NSWCATAP 17 at [84] it was said (relevantly) that leave to appeal should be granted only where an injustice is reasonably clear in the sense of going beyond merely what is arguable, or a factual error that was unreasonably arrived at and clearly mistaken.
3. Clause 12 of Schedule 4 of the CAT Act limits the granting of leave in cases involving decisions of the Consumer and Commercial Division as follows: (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).
4. The appellant supplied the Appeal Panel with copies of the material he relied on before the Tribunal Member below. The appellant took the Appeal Panel to particular parts of that evidence including the photographs and emails. The substance of his submissions was that the Tribunal below should have reached a different conclusion on that evidence.
5. It is apparent from the Member's reasons that the appellant was unsuccessful before the Tribunal below because the evidence he presented to the Tribunal did not persuade the Tribunal: 1. that the Boatbags were defective; or 2. that the Boatbags caused the damage to the hull.
6. Collins v Urban considered the application of the test of "substantial miscarriage of justice" as follows: [76] Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in clause 12(1)(a), (b) or (c) 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 at the relevant circumstance in paragraph (a) or (b) not occurred or if the fresh evidence under paragraph (c) had been before the Tribunal at first instance. [77] As to the particular grounds in clause 12(1)(a) and (b) without seeking to be exhaustive in any way the authorities establish that: (1) if there have been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchins v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) the decision under appeal can be said to be "against the weight of the evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Ltd v Stein Heurtey SA [2013] NSWSC 266 at [153]. [78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved and the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. [79] in order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in clause 12(1)(a), (b) or (c) it will generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do so even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of section 68 of the CTTT Act and especially at [46] and [55].
7. Having regard to the material provided by the appellant, we are satisfied that the decision of the Member below was clearly open on the evidence before him. While the appellant disagrees with the outcome, we are not persuaded that the decision was "… not one that a reasonable Tribunal member could reach..".
8. The appellant contends that the decision was not fair and equitable. The appellant has not shown that there was a denial of procedural fairness, and the decision of the Member below was open on the evidence. While minds could differ as to the outcome in relation to the alleged defective goods and the damage to the boat, the Appeal Panel is not persuaded that the appellant has suffered a substantial miscarriage of justice in the circumstances, in the sense that he may have been deprived of a "significant possibility" or a "chance which was fairly open". The Appeal Panel is not persuaded that the decision of the Tribunal under appeal was not fair and equitable.

Ground 3 - Significant new evidence

1. The appellant sought to rely upon an expert report dated 3 May 2017 of Newport Marine Services prepared by Matt Doyle, company director, which he said would overcome the deficiency in his evidence.
2. Clause 12 of Sch 4 requires that the new evidence is both significant, and not reasonably available at the time the proceedings under appeal were being dealt with.
3. The matter was heard on 15 March 2017. The appellant said that he obtained the further evidence after reading the decision of the Tribunal below. He said in relation to the evidence before the Tribunal below that he believed photographs and the invoices were sufficient to prove the causal connection between defects in the bags as well as the damage to his boat.
4. The Appeal Panel is not satisfied that the further report of 3 May 2017 was not reasonably available at the time the proceedings under appeal were being dealt with. The report includes the statement that Newport Marine Services had maintained the appellant's boat for five years, and summarises the work done to the boat between May 2016 to March 2017. That evidence was reasonably available at the time of the hearing in March 2017. The appellant's reason for not obtaining it in essence was that he did not think he would need it. It is always for the moving party to prove their case on the relevant standard, and his failure to do so at the original hearing does not prove that this evidence was not reasonably available at the time the proceedings under appeal are being dealt with.
5. Leave to appeal should not be granted.

Orders

1. The Appeal Panel makes the following order: 1. Leave to appeal is refused, and the appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 16 August 2017