Upton v Martin and Stein Antiques Pty Ltd

Background

1. The dispute concerns a mis-description of items of jewellery (a pair of opal bracelet cuffs) purchased by Ms Upton from Martin & Stein during a visit to Sydney in 2006. As a result, Ms Upton paid too much for the items.
2. Nearly 10 years later, Ms Upton instituted proceedings in the Tribunal, seeking damages against Martin & Stein, plus interest and costs. There were three decisions of the Tribunal which were reviewed by the Appeal Panel (Upton v Martin and Stein Antiques Pty Ltd [2016] NSWCATAP 228).
3. Two of the appeals were allowed by the Appeal Panel. One was dismissed. Order 3 made by the Appeal Panel was that: "Order that appellant's claim file number GEN 15/58450 be remitted to the Tribunal at first instance for assessment of the amount to be paid by the respondent to the appellant pursuant to section 79N (a) of the Fair Trading Act 1987 (NSW) as described in these reasons."
4. The assessment of the amount to be paid by Martin & Stein was made by the Tribunal on 9 February 2017 and published on 15 February 2017. That decision is the subject of this appeal.
5. The Tribunal was satisfied that the opal bracelet cuffs were worth $3,600, not the $7,000 the appellant paid for them, and awarded $3,400 compensation.
6. The Tribunal also awarded $1,468.96 compensation for loss of earnings on the $3,400. The appellant had argued for a particular interest rate to be applied.
7. The Tribunal awarded $792.61 by way of costs for testing and valuation expenses plus some postage. The Tribunal regarded these as justified by "special circumstances" but rejected claims for further costs on the basis that special circumstances had not been established.
8. The Tribunal ordered the respondent to pay a total of $5,661.57 immediately.
9. The respondent applied to set that order aside and obtained a brief stay on 24 February 2017, which was lifted on 27 March 2017.
10. The appellant lodged her Notice of Appeal on 16 March 2017. She has sought leave to lodge out of time, explaining that the decision was published on 15 February 2017 and that allowance needed to be made for posting between Australia and the UK. The application was accepted by the respondent as being lodged within time. There is no apparent prejudice to the respondent. Leave is granted.
11. On 6 June 2017, Ms Upton registered the decision of the Tribunal in the Local Court with a view to enforcing it.

Appeal on questions of law

1. The appellant can appeal the decision of the Tribunal as of right on a question of law (s 80(2)(b) Civil and Administrative Tribunal Act 2013 (CATA)).
2. In Prendergast v Western Murray Irrigators Ltd [2014] NSWCATAP 69 the Appeal Panel stated at [11]-[12] that: 11. As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The notice of appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal…: 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.

Notice of Appeal

1. As best we are able to make out from looking generally at the appellant's Notice of Appeal (which contains a good deal by way of submission), the questions of law involving alleged errors are that: 1. The Tribunal "failed to award interest post judgment on liability decided by the Appeal Panel" on 17 October 2016; 2. The Tribunal "failed to consider the prejudice suffered by the appellant and the costs she incurred" as special circumstances justifying a greater costs order; 3. The Tribunal's order stated the respondent's address as "shop 26" when ASIC records show the address as "shop 22"; 4. The Tribunal accepted the stay application made by a director of the respondent in her own name; 5. The Tribunal granted a stay: 1. when there was no evidence to support the application; 2. failed to provide adequate reasons for granting the stay; and 3. the appellant was denied procedural fairness and natural justice.
2. The appellant also submits that the Appeal Panel should set aside the decision of the Tribunal and deal with the matter by way of a new hearing.
3. The meaning of a 'question of law' was discussed by the Appeal Panel in Lombard Farms Pty Ltd v CCSR [2013] NSWCATAP 42 at [8]-[23]. In Prendergast v Western Murray Irrigators Ltd [2014] NSWCATAP 69 at [13]-[21] the Appeal Panel listed a number of examples of errors of law. It seems to us that the questions of law which Ms Upton seeks to raise are founded on claims that she has either been denied procedural fairness and/or natural justice; or that the Tribunal has exercised its discretion incorrectly.
4. We are conscious that on an appeal from bodies like the Tribunal we are to examine the decision in a sensible and balanced way and not to go over the reasons for decision with a fine tooth comb and an eye keenly attuned to a perception of error: Politis v Federal Commissioner of Taxation [1988] FCA 446 at [14] per Lockhart J.
5. The appellant also sought leave to appeal on other grounds. We deal with the application for leave later in these reasons.

Reply to Appeal

1. Martin & Stein filed a Reply to the Appeal on 20 June2017. Martin & Stein asserted that: 1. The Tribunal (which was clarified at hearing to refer to the Appeal Panel) had no jurisdiction in the matter as the appellant had registered the Tribunal's decision (meaning a money order) with the Local Court thus converting it into a judgment; 2. There were no special circumstances warranting a costs order; and 3. The Tribunal had no power to 'amend' [sic] (which we read as 'award') pre-judgment interest.
2. At the hearing, Martin & Stein submitted that the Tribunal's decision on costs should be embraced, and did not press the 'pre-judgment interest' point, but maintained their argument on jurisdiction. We address that argument later in these reasons.

Consideration

1. The alleged errors of law mentioned at par [15] (3) and (4) can be dismissed quickly. We are unable to discern any basis for them to be regarded as grounds of appeal, even on a generous interpretation for an unrepresented litigant. The appellant wholly failed to establish there was any question or error of law involved.
2. The alleged error of law mentioned in par [15] (5) above is similarly misconceived. Leave would have been required to appeal the stay as it is an interlocutory decision (s 80(2)(a) CATA) and the appellant cannot attack it indirectly in this appeal. In any case, there was no error of law involved. This stay was in place for only 31 days, and no resulting loss to the appellant was established as post-judgment interest was running. The respondent was entitled to seek a stay and provided an explanation that was accepted in the interim until the application was determined, and reasons were given by the Tribunal member on 28 February 2017. There was no abuse of process discernible. The applicant was given an opportunity and a timetable for making submissions on the stay but in the result this was unnecessary.
3. As to the alleged error of law mentioned at par [15] (1), the respondent's submissions correctly point out that r 39 of the Civil and Administrative Tribunal Rules 2014 (CAT Rules) deals with the matter of interest. Interest is only payable to the successful party in a claim for damages on the outstanding balance from time to time of money determined by the Tribunal to be payable, and which being due remains unpaid, at the rate set out in s 101 Civil Procedure Act 2013.
4. The amount of money payable was determined by the Tribunal (on remitter from the Appeal Panel) by its decision of 9 February 2017 published 15 February 2017.
5. Martin & Stein concedes (par [22] of its submissions) that interest should run on $3,400 from the date of the Appeal Panel's decision on 17 October 2016.
6. Interest runs (r 39) without the need for a specific award of interest by the Tribunal. The error of law alleged in par [15] (1) above is shown not to be soundly based.
7. Martin & Stein submitted (par [24]) that the Tribunal should not have treated the claim for pre-judgment interest as giving rise to "compensation". However, Martin & Stein did not itself lodge an appeal or put on a notice of contention challenging that finding by the Tribunal. The matter was not pressed in oral submissions. The respondent submitted that the decision of the Tribunal should stand. In the circumstances, we do not need to decide the point.
8. As to the alleged error of law set out in par [15] (2) above, we note that costs in the Tribunal are not awarded unless there are "special circumstances" (s 60 CATA) (subject to the special provisions in rr 38 and 38A of the CAT Rules, which do not apply here).
9. Decisions about costs are classic examples of an exercise of discretion by the court or Tribunal. That discretion is largely unconfined except that it must be exercised in a judicial way (that is, not arbitrarily, capriciously or to frustrate legislative intent: Oshlack v Richmond River Council [1998] HCA 11 at [22] per Gaudron and Gummow JJ.
10. The respondent has submitted that the Tribunal's decision on costs should be embraced.
11. The Tribunal considered the appellant's detailed submissions on costs and found that special circumstances only justified an award of costs for expert reports and postage in favour of the appellant.
12. The other costs claimed by Ms Upton were considered by the Tribunal, and were held not to be out of the ordinary costs of litigation, and so no order was made. No adverse finding was made about the respondent's treatment of the matter. In our view, the Tribunal approached the issue correctly and made a decision that was open to it on the materials before it.
13. Ms Upton has referred us to various decisions of the UK courts, but we do not see them as relevant to the costs issue here.
14. Although not included in the Ms Upton's Notice of Appeal, there is a complaint in the submissions dated 13 June 2017 (pars [43] and [44]) about the failure of the Tribunal to award her costs of her first visit to the Appeal Panel which remitted the matter to the Tribunal for assessment of damages, and made no order as to costs.
15. Strictly, this is not a matter for us to decide, but in our view the Tribunal properly considered the question of costs of the first appeal, but did not allow them for the same reasons as disallowing the ordinary costs of litigation in the Tribunal.
16. Ms Upton has not been able to make good her claim of error of law on the part of the Tribunal in exercising its discretion as to costs. We dismiss that ground.
17. The end result is that Ms Upton has been unable to establish that the Tribunal made any error on a question of law. On this basis the appeal is dismissed.

Leave to appeal

1. Ms Upton also seeks leave to appeal on the merits (and have the costs and interest questions reheard by the Appeal Panel). Section 80(2) of the CATA provides that any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. In relation to appeals against decisions made within the Commercial and Consumer Division, Sch 4 cl 12(1) of the Civil and Administrative Tribunal Act 2013 provides that the Appeal Panel may grant leave only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision under appeal was not fair and equitable; or (b) the decision 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).
3. The meaning of a substantial miscarriage of justice was discussed in Collins v Urban [2014] NSWCATAP 17 where the Appeal Panel said: 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 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. . . . 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 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.
4. Martin & Stein in their Reply to Appeal take the position that leave to appeal should be denied on the basis that the Appeal Panel lacks jurisdiction; and thus the decision of the Tribunal would stand (subject to an allowance for a GST refund of $636.36 (that is, 1/11 of $7,000) received by Ms Upton under the tourist GST refund scheme, upon which issue the parties are in agreement).
5. Having regard to all of the evidence before us, including the transcript of the Tribunal hearing; the decisions of the Appeal Panel on 17 October 2016 and the Tribunal on 9 February 2017; plus the written submissions of the parties filed before the hearing and the oral submissions at the hearing itself (the appellant, without leave, filed yet further submissions after the hearing, but we have not read them or taken them into account), we cannot find that the Tribunal decision is not fair and equitable, or against the weight of evidence (this was not a 'new evidence' case). Nor do we consider that the findings of the Tribunal were so against the evidence (in the sense that the evidence in its totality preponderates so strongly against the conclusion reached by the Tribunal) as to be a conclusion that no reasonable Tribunal member could reach: Calin v The Greater Union Organisation PL (1991) 173 CLR 33 at 41-42, Maintek Services PL v Stein Heurtey SA [2013] NSWSC 266 at [153], cited in Collins v Urban [2014] NSWCATAP 17 at [77]-[79]. The Member came to a fair and equitable decision based on those findings. There is no basis for a grant of leave to challenge those matters of fact.
6. We are therefore not satisfied there has been a substantial miscarriage of justice in this case in the sense discussed in Collins v Urban, and thus we cannot give leave to appeal.

Other - jurisdiction

1. Martin & Stein in its submissions raised an issue about whether the Appeal Panel has jurisdiction in the matter, since the Decision has become a judgment of the Local Court.
2. In summary, the argument was that the decision of the Tribunal, having become the subject of a money order made by the Tribunal Registrar (s 78 CATA), and then having been registered in the Local Court, had thus becoming a judgment (see Pt 36 Div 4 of the Uniform Civil Procedure Rules), so that the Appeal Panel no longer had jurisdiction to hear the appeal.
3. We do not consider that that submission is correct. On registration at the Local Court, the decision of the Tribunal became a judgment and, apart from invoking the slip rule, cannot be changed by the Tribunal. Indeed, the slip rule was used to correct the spelling of the name of the respondent by the Registrar.
4. The only way the decision of the Tribunal can now be altered is on appeal. If we had found the decision of the Tribunal deficient in any respect which was then reflected in different money amount, it would be necessary to seek any underpayment or overpayment to be corrected through the Tribunal and Local Court processes. The refund of GST agreed between the parties falls under this heading.
5. Clearly, the application for a new hearing by the Appeal Panel cannot be accepted.

Costs

1. There was no application for costs by either party, and thus we make no order.

Orders

1. For the above reasons, the orders of the Appeal Panel are: 1. The appeal is dismissed. 2. Leave to appeal refused.

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: 17 August 2017