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[2014] NSWCATAP 93
NCAT Appeal Panel
2014-11-27
Dr J
Original judgment source is linked above.
reasons for decision Introduction 1In 2013, the respondent Lionel Fay (Mr Fay) purchased spare car parts from the appellant, Wanted Autos Pty Limited (Wanted Autos). He paid Wanted Autos the sum of $1,560. The goods were not delivered. He began proceedings in the Tribunal. 2Orders were made by the Tribunal on 17 September 2013 (wrongly stated as 17 September 2014 in the notice of order of 13 May 2014) requiring the goods to be delivered in accordance with the orders. Mr Fay considered that had not been done. On 28 February 2014 he filed an application to renew the proceedings, seeking payment of the amount of $1,650.00 plus costs. On 13 May 2014, following a further hearing at which Mr Fay appeared but Wanted Autos did not, the Tribunal ordered that Wanted Autos pay Mr Fay $1,560 on or before 13 June 2014. The reasons for that decision stated The Tribunal is satisfied that the respondent has not complied with the orders of the Tribunal of 17 September 2014 [in fact 2013], and the goods have not been delivered to the applicant in accordance with the orders. An order is made for the refund of the monies paid by the applicant for the supply and delivery of the goods. 3Wanted Autos filed a Notice of Appeal on 11 June 2014, challenging those orders. The Notice of Appeal lists the following grounds of appeal: 1. We did send the parts. 2. His [sic, a reference presumably to Mr Fay] not respond to phone call. 3. Transport company they contact him but he put the item on hold. 4. His [sic] been trying to find Smash Repairs to repair his ute. 5. The parts transport company at his end [sic].
Appeals on a question of law, and with leave The Civil and Administrative Tribunal Act 2013 (NSW) ('the Act') provides for appeals as of right on a 'question of law': s 80(2)(b) and also permits appeals with leave of the Appeal Panel. The applicant does not suggest there is an appeal on a question of law. It seeks leave to appeal from the decision. 4The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. Thus we must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides: 12 Limitations on internal appeals against Division decisions (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). 5These provisions were examined in Collins v Urban [2014] NSWCATAP 17 at [65]-[79], which also decided that even if the Appeal Panel is so satisfied, there is a discretion to grant leave, and at that second stage further principles are to be considered, namely (at [84]): (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact...; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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,... (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: [citations omitted].
There is no new evidence 6Attached to the Notice of Appeal are a number of pieces of 'new evidence'; namely, a document from the appellant signed by 'Joseph S' stating that Mr Fay had agreed at the hearing in April to collect the parts and pay the difference for the transport of the spare parts, so, as it is put, it was simply a matter of Mr Fay picking up the goods. There is also an email from the couriers, dated 2 September 2013. A further email from Wanted Autos of 2 June 2014 and another document from Wanted Auto together with the courier's documents. 7None of that is 'new evidence' in the sense of information which was not known to the appellant prior to the April hearing. There is no explanation as to why, as asserted in the Notice of Appeal, the appellant first became aware of this evidence on 2 June; rather, the documents on their face show that the information was known to the appellant at least at the time of the hearing which led to the orders now challenged. 8In relation to the assertion that the decision was not fair and equitable, the appellant simply said 'we did send the parts to his address'. 9In response, this submission was received on 29 September 2014: I act for Lionel Fay. The following is my submission for the above appeal. The history of this matter is as follows: The respondent ordered car parts from the appellant in March 2013. They were not delivered to the correct address. Eventually a delivery was made but not in the respondent's name. It was not accepted as the respondent was not the addressee. After further communication with the appellant the parts were not delivered. The respondent lodged an application with the CTTT. Orders were made on 17/9/2013. Orders were for Lionel Fay to advise Wanted Autos of the address for the delivery of goods. Despite supplying an address for delivery and request by the respondent that the goods be sent there, the goods were not delivered. The respondent appealed to NCAT and a hearing of this matter was held on 13/05/2014. Orders were made for the refund of moneys paid for the supply and delivery of the goods. The respondent refers to the information provided in his reply to the Notice of Appeal and relies on the information therein. He further wishes to add that in this appeal the applicant has raised no question of law. The original decision of the Tribunal was fair and equitable, and the decision was not against the weight of the evidence. No new evidence has been submitted that was not available to the Tribunal at the time of the first proceeding. The appellant was notified of the date of the second proceedings but failed to attend.
Consideration 10The position is clear. Orders were made last September that the goods be delivered. In April a further hearing was held of which the appellant had notice, but did not attend. The evidence presented on that occasion demonstrated the goods had not been delivered. In the circumstances, the orders made were evidently the correct and preferable decision; namely, non-compliance with the 17 September 2013 orders had led to an order for repayment of the sum for the undelivered goods. 11The appellant simply asserts that there had been delivery, when that was not the evidence at the hearing. Far from the decision of the Tribunal being against the weight of the evidence, there was no evidence from the appellant at the hearing, as they did not attend it. There is no new evidence which was not capable of being provided by the appellant at the hearing in April. We thus decline to admit it. 12Accordingly, none of the preconditions for establishing a possible substantial miscarriage of justice within the meaning of Cl 12 of Schedule 4 to the Act has been established. Even if we were wrong as to that conclusion, none of the factors mentioned in Collins v Urban at [84] are here demonstrated. 13The application for leave to appeal must be refused, and the appeal itself must be dismissed. We so order. 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: 27 November 2014
Wanted Autos Pty Ltd
Lionel Fay