Tassone v Masters Home Improvement Australia Pty Ltd

NCAT Appeal Panel|2018-05-10

reasons for decision

This appeal arises out of orders made on 2 March 2018 when the appellant's case in the Consumer and Commercial Division of the Civil and Administrative Tribunal (the 'Tribunal') was dismissed.

Background

The appellant sought orders in the Tribunal that the respondent pay $1,865.70 to her being the amount that she had paid for a 'Kitchen package' she had purchased from the respondent on 17 February 2016. Implicit in her application was the notion that the 'Kitchen package' be returned to the respondent.
In his Reasons for Decision the Tribunal Member considered an application by the appellant to adjourn the hearing and dismissed it because there was no evidence in support and because the respondent was present in the Tribunal and ready to proceed. As a result the application was dismissed because of the non-appearance of the appellant.
Additionally, the Tribunal Member stated that having considered the material placed before him, the Tribunal was not satisfied, at the civil standard of proof, that the grounds required to make the orders sought had been established. The Member provided reasons to support this finding to the following effect: 1. The appellant was applying for an order pursuant to section 79N of the Fair Trading Act 1987 that would require the respondent to accept the return of kitchen cabinetry components purchased by the appellant on or about 17 February 2016 and provide her with a full refund of the purchase price of $1,865.70; 2. the kitchen cabinetry supplied to the appellant was for a 'do it yourself' kitchen installation and that the respondent did not play any role in measuring the kitchen in situ; 3. it fell to the appellant to ensure that the kitchen cabinetry components she selected were appropriate to her needs and that the respondent could not be held responsible for her failure to select the correct components; 4. the appellant's claim has been made outside the rejection period specified in section 262 of the Australian Consumer Law and that it was too late for the appellant to pursue her claim; 5. the evidence established that the kitchen cabinets were supplied to the appellant in flatpacks on or about 17 February 2016 and that the appellant did not seek to assemble the kitchen cabinets until June 2017, some 16 months later at which time she contended, as stated in her application to the Tribunal, that she discovered some components supplied were incorrect and others missing; 6. the appellant did not approach the respondent to request a return of the cabinetry and to obtain a refund until late August or early September 2017; 7. the respondent had a 30 day return and refund policy and it refused the applicant's return and refund request in accordance with that policy and that it was reasonable for it to do so in the circumstances of the case; and 8. a reasonable consumer would have checked the flatpacks supplied by the respondent at or near the time of the supply to ensure that the right components were supplied and would not wait 16 months to check the material provided by the respondent.

Grounds of Appeal

The Grounds of Appeal raise the following matters: 1. The appellant was ill on the date of the hearing and as a senior citizen did not have access to her own transport and she was not in any condition to travel; 2. The contract entered into between the parties was that the appellant on payment would receive items that matched the description in the design provided by the respondent; 3. The Appeal Panel should reconsider the rejection period applicable to the transaction as referred to in section 262 of the Australian Consumer Law and determine the term of the rejection period that should apply in the circumstances of this case; and 4. There was no information provided to the appellant at the time of the transaction which informed her of the respondent's 30 day return policy.
In addition the appellant sought Leave to Appeal on the basis that the decision was not fair and equitable because the appellant was ill on the date of the hearing and not in a position to travel with the result that her case was not adequately put to the Tribunal.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel stated at [12]: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
Given that the parties are self-represented we will proceed in accordance with the above approach and look at the Grounds of Appeal generally.

Requirements for appeal

Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the 'Act') provides that an appeal lies as of right only in respect of a question of law.
Subsection 80(2)(b) of the Act provides that an appeal on any ground other than a question of law shall be by leave. Clause 12(1) of Schedule 4 of the Act is headed 'Limitations on internal appeals against Division decisions'. The clause provides as follows: '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).'
The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that it may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well-established principle.
The relevant passages in Collins v Urban as regards the first stage are at [76] - [79] (we omit references made to authorities): 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 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 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. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" … (2) The decision under appeal can be said to be "against the weight of 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 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 then 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. 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 cl 12(1)(a), (b) or (c), it will be 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 this, 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 …
As regards the second stage, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 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.

Appeal directions

On 10 April 2018 directions were made in this appeal which required the appellant to lodge with the Tribunal and provide the respondent with all the evidence provided to the Tribunal below on which it is intended to rely, any fresh evidence on which it was intended to seek leave to rely upon and the appellant's written submissions in support of the appeal.

Appellant's submissions

The appellant filed and served her submissions dated 24 April 2018 in support of her appeal together with a number of documents that were attached. It is not clear whether the documents that were attached was the evidence intended to be provided to the Tribunal below on which it was intended to rely, or fresh evidence on which it was intended to seek leave to rely.
The appellant's submissions were arranged under 4 headings.
The first heading was 'Do-it-yourself kitchen installations' The material under this heading was in three paragraphs, the first of which was new evidence and the following two paragraphs being submissions based on that new evidence. This material addressed the Tribunal Member's reference to a 'do it yourself' kitchen installation.
The second heading was 'Rejection Period'. The material under this heading also sought to introduce new evidence and addressed the Tribunal Member's reference to and findings in connection with the respondent's 30 day return and refund policy.
The third heading was 'Masters 30 Day Return Policy'. The material under this heading also addressed the Tribunal Member's reference to and findings in connection with the respondent's 30 day return and refund policy.
The fourth heading was 'Overview and Correction of kitchen package errors'. The material under this heading sought to introduce new evidence about the errors of the respondent in supplying the various components of the kitchen package.

The respondent's submissions

The respondent submitted that no new evidence had been presented and there was no example of the Member making a factual error or being clearly mistaken or unreasonable and that there had been no example demonstrated where the Member did not rely on the evidence presented.
The respondent commented on the appellant's 24 April 2018 submissions referring to a number of documents it stated were in evidence before the Tribunal Member.

The appellant's failure to attend at the hearing

The appellant has raised the issue that she was ill on the date of the hearing and as a senior citizen did not have access to her own transport and was not in any condition to travel to attend at the hearing. She states that as a result her case was not adequately put to the Tribunal.
A failure to afford the appellant procedural fairness will, if established, constitute an error of law. We will treat this ground of appeal as raising an error of law for which leave is not required.
The respondent has provided us with a Notice of Hearing dated 8 January 2018 which informed the parties that the proceedings were set down for hearing on 2 March 2018 at 9:15 AM. We have also been provided with a copy of orders made in the Tribunal on 21 December 2017 which required the parties to file evidence in support of their respective cases. The appellant was ordered to file her evidence by 2 February 2018.
There is no suggestion that the appellant wrote to the Tribunal requesting an adjournment of the hearing on 2 March 2018 attaching documents such as medical certificates or a letter from a doctor which addressed the appellant's state of health at the material time. The appellant has not explained how it was that she conveyed her adjournment request to the Tribunal. All that can be known about the adjournment request is that the Tribunal Member has referred to an application to adjourn which was not supported by evidence.
The appellant has not sought to produce, by way of new evidence, material to establish that she was ill at the time of the hearing and unable to travel to attend the hearing. It was however stated from the bar table that the appellant was sick and unable to attend at the hearing.
We appreciate that the outcome of each adjournment application will depend upon the facts of the particular application. However the Tribunal has published a guideline which must be taken into account. The Tribunal website contains a Guideline which is titled 'Adjournments When can hearings be postponed or delayed?' (the 'Guideline')
Paragraph 5 of the Guideline states: 'Wherever there is time to do so, a party who wants to request an adjournment must make that request in writing to the Registrar of the relevant Division and that should be done as soon as they realise that an adjournment is necessary and preferably at least 5 days before the hearing date. Their written request must identify the file number and set out the reason for requesting the adjournment. They must attach a copy of the documents that support the adjournment request- see paragraph 9. If the other parties agree to the adjournment, some clear written confirmation by them must be attached'
Paragraphs 9 and 10 of the Guideline states so far as is relevant: 'A party making an adjournment request must give clear reasons for that request. Depending on the facts and circumstances, reasons that are commonly given include that: one of the parties is too ill to prepare the case for hearing or to participate in the hearing' 'Evidence should be provided to support the reasons. For example, if a party is ill, they should provide detailed medical evidence if it is available. A medical certificate that only says a person is not fit for work does not give the Tribunal enough information to decide whether to adjourn the hearing. a) The medical certificate must be specific and clearly state that the person is unable to attend the hearing and indicate the nature of the illness and other medical reasons why this prevents the person from attending. If you consider the information in the medical certificate confidential, you should advise the Tribunal as supporting documents including medical certificates are provided to the other party as a matter of procedural fairness. You should clearly identify the confidential documents and ask the Tribunal to make a confidentiality order.'
The appellant did not have regard to the Guideline, nor independently of it make an attempt to explain her position to the Tribunal in a way that the gravity of her position could be made clear to the Tribunal Member who, to her knowledge, was listed to hear her application.
Sections 36(1) and (2) and 38(5)(c) of the Act are relevant to the consideration of this aspect of the appeal. Those sections state: '(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules.' 'The Tribunal is to 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.'
There have been a number of Appeal Panel decisions which deal with the question of adjournments. Boscolo v NSW Land and Housing Corporation [2017] NSWCATAP 210 refers to previous decisions which consider the question of granting an adjournment.
The appellant in these proceedings was provided with the opportunity to file evidence in her application and was given ample notice of the fact that the hearing of her application was fixed for 2 March 2018, thus satisfying section 38(5)(c) of the Act.
The authorities collected in Boscolo v NSW Land and Housing Corporation include a reference at [54] to O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 where at [22], the Appeal Panel identified the following principles governing applications for an adjournment: '(1) "matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment'
In our view and in accordance with the Guideline that we have referred to, all applications for adjournments in the Consumer and Commercial Division should be supported by an adequate written explanation and where medical issues are the basis for the request for an adjournment, the application should be supported by adequate medical evidence. Ideally applications for adjournments should comply with the Guideline. However we accept that there may be occasions where a litigant may not have internet access or be aware that the NCAT webpage contains the Guideline. Nonetheless in those occasions a litigant must support his or her adjournment with adequate written reasons and with adequate medical supporting documents where an adjournment is sought because of ill health.
We agree that the absence of an adequate explanation, which in our view means a written explanation accompanied by appropriate supporting evidence weighs heavily, and sometimes decisively, against the grant of an adjournment.
We would add that in our view the guiding principle referred to in section 36(1) and (2) of the Act could not ordinarily be implemented in the exercise of the adjournment power under section 41 of the Act if a party made an adjournment request by a telephone call or a simple written communication to the registry of the Tribunal requesting the adjournment of a final hearing.
In our view the Tribunal Member did not fail to afford the appellant with procedural fairness by not adjourning the proceedings on 2 March 2018 due to the appellant's request for an adjournment which was not supported by adequate evidence.
Insofar as the appellant has sought leave to appeal on the basis that the decision was not fair and equitable because the appellant was ill on the date of the hearing and not in a position to travel with the result that her case was not adequately put to the Tribunal, for the reasons that we have set out above we are not satisfied that the appellant may have suffered a substantial miscarriage of justice

Rejection period

The appellant has referred us to section 262 of the Australian Consumer Law ('ACL') which deals with the circumstances where consumers are not entitled to reject goods. Section 262 states: 'A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.'
The Tribunal Member considered this section of the ACL and found that the claim had been made outside the rejection period specified in s262 of the ACL. The Tribunal Member also found that it was too late for the appellant to pursue her claim because the kitchen cupboards were supplied to the appellant in flat packs on or about 17 February 2016, that the appellant did not seek to assemble the kitchen until June 2017, some 16 months later and did not approach the respondent with a request to return the cabinetry and obtain a refund until late August or early September 2017 because of her contention that she discovered some components supplied were incorrect and others missing
The Tribunal Member made findings that a reasonable consumer would have checked the flat packs at or near the time of their supply to ensure that the right components were supplied and would not wait 16 months to do so.
The Tribunal Member also found that the respondent had a 30 day return and refund policy and it refused the applicant's return and refund request in accordance with that policy and that it was reasonable for it to do so in the circumstances of the case.
In her submissions the appellant as stated at [18] disputes the Tribunal Member's factual findings by referring to facts and circumstances that could only be established by new evidence. The appellants Notice of Appeal does not seek leave to appeal on the basis referred to in clause 12(1)(c) of Schedule 4 of the Act, namely that: 'significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)'
Given that the appellant has not applied for or obtained leave to rely on new evidence, we will not have regard to the appellant's challenges to the Tribunal Member's factual findings as summarised in [41] above.
We can see no error in the Tribunal Member finding that the rejection period referred to in section 262 of the ACL had expired by August or early September 2017 when the appellant had purchased the relevant products from the respondent on or about 17 February 2016. The appellant has submitted that particular attention should be given to sections 262((2) (a) and (b) of the ACL. We do not think that those provisions compel a conclusion different to that found by the Tribunal Member. We are of the view that the subsections support the finding that the rejection period had expired by August or early September 2017.
When, as found in these proceedings, that there was a period of some 18 months between the purchase of materials and a claim for their return, we are of the view that a consideration of the type of goods purchased and the use to which the appellant was likely to put them would not have required a conclusion that it was reasonable for 18 months to pass before a failure to comply with a guarantee referred to in section 259(1)(b) of the ACL (namely a guarantee applicable to supply as referred to in Subdivision A of Division 1 of Part 3-2, except sections 58 and 59(1)) to have become apparent.
We reject the appellant's Grounds of Appeal relating to the rejection period referred to in section 262(2) of the ACL.

Remaining grounds of appeal

The appellant has also raised as Grounds of Appeal: 1. The contract entered into between the parties was that the appellant on payment would receive items that matched the description in the design provided by the respondent; and 2. There was no information provided to the appellant at the time of the transaction which informed her of the respondent's 30 day return policy.
We can dispose of these Grounds of Appeal by stating as to the Ground referred to in [49(a)], the appellant's application at first instance did not seek damages for breach of contract on the basis that the respondent delivered supply items that did not match the description. The appellant's claim was for a full refund of the amount paid for the items she purchased, which as we stated at [2] gives rise to assumption that the appellant was seeking a 'refund and return of goods' order from the Tribunal. For this reason we reject this Ground of Appeal.
Even if we were to accept the appellant's submission that the respondent's 30 day return policy was unreasonable, in our view that would not justify an order in the appellant's favour since the Tribunal Member found, correctly in our view, that the appellant did not seek to return the supply items to the respondent within the return period referred to in section 262(2) of the ACL.

Disposition of the Appeal

For the reasons that we have provided we order that: 1. Leave to Appeal be refused; 2. 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: 10 August 2018

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (1)

Cases Cited (4)