TCC Recruitment Pty Ltd t/as Black Betty Hospitality Group v Alsimas Pty Ltd t/as The Arthouse Hotel

NCAT Appeal Panel|2024-03-08

REASONS FOR DECISION

The appellant, TCC Recruitment Pty Ltd trading as Black Betty Hospitality Group ("Black Betty"), is a recruitment agency. In 2023 it was retained by the respondent, Alsimas Pty Ltd trading as Arthouse Hotel ("Arthouse") to recruit a chef. In June 2023 Arthouse paid Black Betty the sum of $18,232.50. Arthouse sought a refund of that payment when it filed an Application in this Tribunal on 18 August 2023.
The matter was listed for hearing before the Tribunal, but the hearing did not proceed and the decision was made by the Tribunal member on the evidence and submissions which had been filed by the parties. The circumstances in which this occurred are the basis of two of the Grounds of the Appeal.
In its decision dated 7 December 2023, the Tribunal ordered Black Betty to refund the payment. Black Betty has appealed from that decision.

Factual Findings of the Tribunal

The Tribunal found: 1. In February 2023 Arthouse sought to hire a head chef and contacted Black Betty. 2. On 28 February 2023 Black Betty emailed Arthouse an information package relating to their services. This package included a page titled "Special Conditions". 3. Arthouse was not required to sign an agreement with Black Betty. 4. The Special Conditions provided that Arthouse would pay Black Betty a fee if Arthouse employed a person introduced by Black Betty within twelve months of the introduction. The fee payable was to be calculated on the basis of the annual gross salary at commencement. 5. On 14 March 2023, Black Betty introduced a person referred to as Alf as a potential candidate. Arthouse met with Alf. Arthouse decided not to hire him but to continue to employ the existing chef. 6. Three months later Arthouse advertised for a new head chef. Black Betty saw the advertisement on 7 June 2023 and contacted Arthouse to ask whether they were still interested in Alf. 7. On 8 June 2023 Arthouse met with Alf, and Black Betty was instructed to offer him the job. On 14 June 2023 Arthouse prepared an employment contract for Alf. On 20 June 2023 Alf signed the employment contract and Black Betty forwarded it to Arthouse together with its invoice in the amount of $18,232.50. The invoice noted a commencement date for Alf of 26 June 2023. Arthouse paid the amount of $18,232.50 to Black Betty on 20 June 2023. 8. Later the same day, 20 June 2023, Alf advised Arthouse that he would like to start work later as he was not well. It was agreed he would start work on 3 July 2023. On 1 July 2023 Alf informed Arthouse that he had changed his mind and he would not come to work for them. 9. It was uncontested that Alf did sign an employment offer but he did not commence work in accordance with the offer extended by Arthouse.

The Appeal

The Grounds for the Appeal are the following: 1. In ordering the matter to proceed in the absence of Black Betty, Black Betty had been deprived of procedural fairness in breach of the rules of natural justice resulting in Black Betty not being heard on the hearing of the matter. 2. The Tribunal erred as a matter of jurisdiction as the matter was not properly categorised as a consumer claim. 3. The Tribunal erred in ordering a refund of the monies based on the belief of Mr McBeath, the director of Arthouse, which was irrelevant when the monies had been paid to Black Betty in accordance with the contract between the two corporations. 4. The Tribunal erred in refusing to adjourn the matter when the director of Black Betty responsible for the matter was sick with Covid and unavailable and the employee of Black Betty who attended the hearing was also sick with Covid.

The Law

An internal appeal is not a re-hearing of the original decision or a mere opportunity for a party dissatisfied with the outcome of a decision to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]:
To succeed in an appeal, Black Betty must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive 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 had 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 is so unreasonable that no reasonable decision-maker would make it.
Neither party was legally represented at the hearing before us. Mr Ackman made submissions for Black Betty, as its sole director. Mr McBeath made submissions for Arthouse, as its sole director. However the Notice of Appeal filed by Black Betty, the Application for a Stay filed by Black Betty (which was determined on 17 January 2024) and the written submissions in support of the Black Betty's Stay Application dated 8 January 2024 had all been prepared by a solicitor.
As the solicitor who had represented Black Betty did not appear at the hearing and Arthouse was not legal represented, we bore in mind the decision of McCallum JA in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [43] that: "[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point."

Adjournment Application

Black Betty sought an adjournment of the hearing on the basis that his solicitor was not available to attend at the hearing. We refused the Application and foreshadowed that we would provide Reasons.
The power to adjourn proceedings is contained in s 51 of the NCAT Act.
When considering an adjournment application, the discretion must be exercised judicially: Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [54].
In deciding to refuse to exercise the discretion to adjourn the proceedings we took into account the following matters: 1. At a directions hearing on 17 January 2024 the matter was listed for hearing on 8 March 2024 and various orders were made for the preparation of the matter for hearing. Mr McBeath informed us that Black Betty's solicitor attended at that directions hearing. 2. As we have said the solicitor acting for Black Betty prepared documents for their case, with the last document being filed on 8 January 2024. We were informed by Mr Ackman that he had assumed that his solicitor would be attending at the hearing on Friday 8 March 2024 until he found out "last week" that his solicitor would be overseas. Despite knowing that his solicitor could not attend for at least a week before 8 March 2024 Mr Ackman did not inform Arthouse, nor did he file an Application for an Adjournment of the hearing date. 3. There was no documentary evidence from the solicitor explaining his failure to attend nor was there any record on the NCAT file of the solicitor contacting the Registry to notify them of his inability to attend at the hearing. 4. Black Betty was ordered by the Tribunal to repay the sum of $18,232.50 to Arthouse. Black Betty's Application for a Stay of that Order was unsuccessful on 17 January 2023. The sum has still not been repaid. 5. The objects in s 3 of the NCAT Act require us to ensure that the Tribunal is accessible and responsive to the needs of all of its users and resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. 6. Public interest in the efficient use of court resources and the impact on other pending cases is a relevant consideration since the resolution of disputes serves the public as a whole, not merely the parties to the proceedings: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [27] and [113]. 7. We must ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38 (5)(c) of the NCAT Act.
We concluded that it was in the interests of justice to refuse the Application for an adjournment of the hearing.

Grounds One and Four

Grounds One and Four are related. They arise out of the decision by the Tribunal member to determine the Application on the papers.
If the assertions in Grounds One and Four were made out we are satisfied they would be errors on a question of law, being a failure to afford procedural fairness to Black Betty.
Section 50 of the NCAT Act relevantly provides: 50 WHEN HEARINGS ARE REQUIRED (1) A hearing is required for proceedings in the Tribunal except-- … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first- (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
The relevant portion of the Tribunal's decision says: HEARING Both parties were in attendance today. The applicant was represented by Mr Ben McBeath. The respondent was represented by Ms Pauline Rogers. Ms Rogers stated that she is currently very unwell with Covid-19. She said her whole office is sick. She sought an adjournment. I noted that both parties had filed comprehensive documentation pursuant to Tribunal Directions made on 21 September 2023. At my suggestion, the parties agreed to me determining the matter on the basis of the documentation filed and in the absence of the parties.
It is implicit in the foregoing that the Tribunal made an order dispensing with a hearing.
Arthouse agrees that at the commencement of the Tribunal hearing both parties agreed to have the matter determined on the papers.
On 17 January 2024 Black Betty was ordered to file by 7 February 2024: 1. all the evidence given to the Tribunal at first instance on which it is intended to rely; 2. if oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing.
No such documents were filed, nor did Black Betty attempt to rely on any such documents at the hearing before us.
Apart from the assertion made by Mr Ackman, there was no evidence before us to establish that, as asserted in the Grounds of Appeal, Black Betty was ordered to proceed at the Tribunal hearing, that it was not given the opportunity to be heard nor that the Tribunal refused to adjourn the matter.
Grounds One and Four must fail.

Ground Two

Black Betty says that as a matter of law, the Tribunal member had no jurisdiction to determine the matter as, properly categorised, it was not a consumer claim but rather a commercial dispute between two corporations arising out of a contract. In paragraph 6A of the Notice of Appeal it is asserted that it is beyond the power of the Tribunal to determine a commercial dispute between two corporations arising out of a contract.
Mr Ackman was unable to assist us any further in relation to the basis on which Black Betty asserted that this is not a consumer claim.
The Tribunal commenced its determination with the following paragraph: 1. The applicant obtained services from the respondent business. The services were supplied to the applicant in NSW. The applicant seeks a money order being a refund of moneys paid to the respondent. This is a consumer claim as defined under s 79E Fair Trading Act 1987 (FTA).
We are satisfied that Ground Two alleges an error on a question of law: Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77].
There is nothing in the Tribunal's decision which suggests that Black Betty submitted to the Tribunal that it did not have jurisdiction to hear the Application. Of course, this is not determinative of the issue as we need to be satisfied that the Tribunal has jurisdiction, even in the absence of a challenge by either party: HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126, Stone J at [3].
Section 79D of the Fair Trading Act 1987 (NSW) relevantly defines a consumer as: Any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services-- (c) a small proprietary company (within the meaning of the Corporations Act 2001 of the Commonwealth) We are satisfied that the evidence before the Tribunal was that Arthouse satisfied the definition of consumer in the Corporations Act and that there is no evidence before us to suggest that at that hearing Black Betty called any evidence to the contrary. Section 79H provides: 79H PERSONS PRESUMED TO BE CONSUMERS For the purposes of this Part-- (a) a person or body claiming to be a consumer is to be presumed to be a consumer until the contrary is proved, and (b) in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person or body claiming to be a consumer is not a consumer is on the party who seeks to establish that fact.
Section 79J of the Fair Trading Act 1987 (NSW) confers jurisdiction on the Tribunal to hear and determine a consumer claim. A consumer claim is relevantly defined in s 79E as: 79E MEANING OF "CONSUMER CLAIM" (1) For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services-- (a) the payment of a specified sum of money,
We are satisfied that the Application before the Tribunal was a claim by Arthouse for the payment of a specified sum of money, that is the reimbursement of the money paid to Black Betty in respect of the invoice issued by Black Betty.
Ground Two must fail.

Ground Three

Black Betty says that the Tribunal erred in ordering a refund of the monies based on Mr McBeath's belief, which was irrelevant when the monies were paid to Black Betty in accordance with the contract between the two corporations.
One of the principal issues before the Tribunal was the meaning of a Special Condition in the document sent to Arthouse by Black Betty in February 2023. It said: A full placement fee is payable when: (a) The client employs any candidate … who has been introduced by Black Betty within 12 months of introduction ...
Black Betty submitted to the Tribunal that Alf became an employee of Black Betty when he signed the employment contract on 20 June 2023.
Arthouse submitted to the Tribunal that Alf did not become an employee because he never attended at the premises to work as a chef.
It is true that the Tribunal did say: 35. I do not believe Arthouse agreed to pay BB a fee merely for a signature on an employment agreement. They rightfully expected that a person would commence employment. This is an unremarkable expectation.
However the sentence must be read in context. In the preceding paragraphs, the Tribunal noted that there was no signed written agreement between the parties so that the issue to be determined was the effect of the Special Condition set out above which, it said, was to be interpreted in a realistic and objective manner.
The Tribunal member then interpolated, in paragraph 35, the submission made by Arthouse as to how the term "employed" was to be defined - not just the signing of an employment contract, but by attending at the premises and working.
In the following paragraphs the Tribunal member explained why that was the preferable interpretation of the standard term, and included an example (at paragraph 37) of what the consequences would be if Black Betty's submission was accepted.
The Tribunal concluded that Black Betty should refund the fee paid by Arthouse as Alf had not commenced employment.
We consider that the Tribunal's reasons for its decision make it clear that the correct test was applied when it sought to identify the intention of the parties which is an objective test; identified by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be by using the language in the contract and the commercial context in which it was drafted.
Even if we are wrong and there was an error on a question of law on this issue by the Tribunal, the appeal could not be upheld because the Tribunal also held that Black Betty was liable to refund the fee pursuant to the consumer guarantees in the Australian Consumer Law. This finding has not been challenged by Arthouse, and accordingly, even if the finding that Arthouse was not liable for the fee paid to Black Betty were set aside, the order that Black Betty refund the fee would stand.
Ground Three must fail.

Leave to appeal

Black Betty also sought leave to appeal. The grounds set out in the Notice of Appeal as grounds upon which leave to appeal should be granted merely repeat, in different words, the issues raised as grounds of appeal, which we have dealt with above. For the reasons we have outlined above, leave to appeal should be refused.

Order

The orders of the Appeal Panel are: 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: 18 March 2024

Fair Trading Act 1987(NSW)ss 79D, 79E, 79J

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