Watkins v Woolworths Limited

rEASON FOR DECISION

1. These proceedings have their genesis in the purchase by Thomas Watkins, the Appellant, of a package of frozen fish. That package was purchased from a supermarket conducted by Woolworths Limited (Woolworths), the Respondent, in Port Macquarie. Mr Watkins fell ill after he consumed a portion of the fish from that package.
2. In proceedings commenced in the Consumer and Commercial Division of the Tribunal in November 2015, Mr Watkins sought an order that Woolworths pay him $27,000 because of the illness he suffered. His application for that order was dismissed by Tribunal Member Gilson at the conclusion of a hearing held on 1 March 2016. A Statement of Reasons (the Reasons) for that decision, sought by Mr Watkins under s 66(2) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act), was provided by the Member on 21 July 2016. Following receipt of the Reasons, Mr Watkins commenced the present appeal.
3. For the reasons that follow, we have determined that the appeal should be dismissed. As will become apparent, the question of law raised by Mr Watkins is not sustained. Further, the leave sought by him to challenge the factual finding of the Member is refused.

Background

1. The evidence before the Member was within a narrow compass. On an unspecified date in January 2015, Mr Watkins purchased a small pack of frozen fish from the supermarket conducted by Woolworths at the Settlement City Shopping Mall in Port Macquarie. According to Mr Watkins, the package date of the fish purchased by him was in the year 2013. Neither the fact of his purchase nor the package date is challenged by Woolworths. According to its records, the "use by" date for that fish was 11 December 2015.
2. Mr Watkins consumed a portion of the frozen fish on Friday 13 March 2015. Some time after doing so, either that evening or the following day, Mr Watkins became ill. He states that he was vomiting and had diarrhoea.
3. On Tuesday 17 March 2015, Mr Watkins returned to the supermarket at Settlement City where he reported his illness to a member of the supermarket staff, stating that his illness followed consumption of fish taken from the frozen fish package purchased at that supermarket. He handed the package containing the remaining fish to the staff member to whom he spoke, requesting that the fish be tested, presumably for some biological contamination or degradation.
4. The reported illness and request made by Mr Watkins that day were recorded by the supermarket staff as a complaint. The package that he returned with the remaining fish was stored by a staff member in a refrigerator but not in a freezer. That same day, the "complaint" was reported by the Port Macquarie supermarket manager to administration personnel within the offices of Woolworths in Sydney.
5. In evidence before the Member, Mr Watkins stated that he was ill and debilitated for some time as a consequence of the illness he suffered following consumption of the frozen fish purchased from Woolworths. So much so that he felt unable to leave his apartment because of the symptoms of his illness. However, he did not consult a doctor concerning his illness until 1 April 2015 and did so again on or about 15 May 2015. His consultation with a general practitioner in May led to a pathology referral. The pathology report received as a consequence of that referral recorded a negative result for "faecal occult blood."
6. Following the report of Mr Watkins' complaint to the Sydney office of Woolworths, there followed both telephone and written communication between Mr Watkins and Woolworths' staff until the hearing of his application before the Member. Both by telephone contact and in correspondence, Woolworths expressed concern for Mr Watkins' welfare and offered recompense as an act of goodwill. However, this offer did not resolve Mr Watkins' complaint. He expressed dissatisfaction with the "unprofessional manner" in which his complaint was addressed. In particular, he regarded as "unprofessional" the destruction of the package containing the remaining fish that he had returned to the supermarket without the product being tested as he had requested. That criticism by Mr Watkins must be understood in the context of evidence before the Member.
7. As earlier stated, the package returned by Mr Watkins was refrigerated at the Port Macquarie supermarket but not frozen. After Mr Watkins' complaint and request were reported to the Sydney office of Woolworths, a staff member in that office reported the complaint to the supplier of the frozen fish. The supplier, in turn, undertook to have the contents of the package tested for biological contamination at an independent laboratory. However, when the fact that the returned package had been refrigerated but not frozen was made known, the testing laboratory is reported as stating that any testing then undertaken would "prove nothing" as to the condition of the fish when sold in its frozen state. Mr Watkins was advised by telephone that this was the case on about 20 March 2015. Understandably, he expressed frustration and annoyance upon receiving that advice, his response to that effect being expressed in correspondence sent to Woolworths.
8. Samples from each batch of frozen fish supplied to and sold by Woolworths are retained by the supplier, presumably as an aspect of quality control. A retained sample from the batch of frozen fish purchased by Mr Watkins, identified as such from the packaging returned by him to Woolworths, was tested by a laboratory in China, the fish having been packaged in and supplied from that country. Results of the tests undertaken in respect of the retained fish sample were provided to Woolworths on 7 April 2015. Those results, a certificate for which is in evidence, are said to show no abnormality in the tested sample, a result conveyed by telephone to Mr Watkins on or about 7 April 2015 and subsequently confirmed by letter to him from Woolworths.

The hearing at first instance

1. The hearing first took place on 19 January 2016 before the Member sitting in Port Macquarie. Mr Watkins was present at that hearing. By prior arrangement, Woolworths, represented by its employee Mr G. Plumridge, "appeared" by telephone link to the hearing. More detail of what then transpired will appear later in these reasons. However, it is sufficient for present purposes to record that after some discussion of the case outlined by Mr Watkins, the hearing was adjourned with directions given to each party to file and serve any further evidence upon which they each proposed to rely.
2. The final hearing occurred in Port Macquarie on 1 March 2016. Mr Watkins again appeared in person and Mr Plumridge participated by telephone link. After hearing from Mr Watkins and Mr Plumridge, the Member delivered short oral reasons before ordering that the application made by Mr Watkins to the Tribunal be dismissed.

The decision at first instance

1. In the Reasons the Member identified the jurisdiction being exercised in the case before him as that arising under s 79J of the Fair Trading Act 1987. He did so because, as he stated, the claim made by Mr Watkins was a "consumer claim" within the meaning of s 79E of that Act. However, the cause of action to which that claim gave rise was not identified in the Reasons (cf. Lam v Steve Jarvin Motors Pty Limited [2016] NSWCATAP 186 at [164]). The significance of this omission will be addressed later in these reasons.
2. After referring in the Reasons to the facts as we have endeavoured to summarise them, the Member identified what he described as a number of "evidential deficiencies" in the case presented by Mr Watkins. Those "deficiencies" were identified at [16] as follows: (i) the absence of any evidence from Mr Watkins showing how the frozen fish was "transported, stored, or cooked between its purchase date in January 2015" and its consumption "on or before 17 March 2015"; (ii) while Mr Watkins provided evidence of his state of health on 20 January 2015, as reflected in an Annual Health Assessment Report prepared on that date and provided to the Tribunal, there was "no evidence of any medical assistance being sought until 15 May 2015, some two months after the alleged consumption of the fish", that evidence being confined to a pathology test request on that day but "no medical record or report of the medical visit on 15 May"; (iii) while Mr Watkins stated that he was too ill to seek medical assistance before April 2015, he was able to attend the Woolworths supermarket on 17 March "to raise his complaint"; (iv) although Mr Watkins stated that he was very ill, he neither sought after- hours medical assistance from a medical practice nor did he seek to be taken to hospital by way of ambulance; (v) although Mr Watkins contends that his illness "caused a significant loss of amenity of life for most of 2015 and that he will carry the effects of his illness throughout his remaining life", the only supporting evidence for that assertion is a letter from his neighbour, who was not a medical practitioner, and who stated in that letter that "for some months in the first half of 2015" Mr Watkins was rarely seen outside his apartment, looked unwell and had lost weight, which he explained was brought about by "bad fish from Woolworths"; and (vi) "no basis for a claim of $27,000 compensation" had been presented by Mr Watkins.

An extension of time is required

1. The Notice of Appeal prepared by Mr Watkins was received by the Tribunal on 28 September 2016. It is an appeal brought pursuant to s 80 of the Tribunal Act as the decision of the Member is a "general decision" within the meaning of s 29 of the Act and is therefore an "internally appealable decision" within the meaning of s 32(4).
2. However, the appeal was not lodged within the 28 day period fixed by r25(4)(c) of the Civil and Administrative Tribunal Rules 2014. That period expired on or about 19 August 2016, being 28 days from the date upon which the Reasons were provided by the Member. As the time by which lodgement of the Notice of Appeal exceeded that period is not unduly long and, importantly, as Woolworths does not object to an extension of time, pursuant to s 41 of the Tribunal Act we propose to extend the time for lodging the appeal to 28 September 2016.
3. By s 80(2) of the Tribunal Act, an appeal on a question of law is able to be brought as of right. Any other ground requires leave. A ground of appeal alleging bias on the part of the Tribunal does raise a question of law. If bias is established, there has not been a hearing according to law.

The grounds of appeal

1. Mr Watkins has at all times been self-represented. He prepared the Notice of Appeal without the benefit of legal advice. That is his entitlement. However, the grounds of appeal are expressed in somewhat discursive terms and include matters that could not, on any view, found a basis for appeal from the Member's decision. As we distil the grounds of appeal from the content of, and materials annexed to, the Notice of Appeal, they are: 1. that the Member was biased and on that account the decision must, as a matter of law, be set aside, and 2. that leave to appeal should be granted so that the evidence in support of the claim can be reconsidered.
2. The order sought by Mr Watkins is "that the existing decision be set aside and replaced with an order that the Respondent settle the original claim plus costs." We understand the reference to "settling" the original claim to intend an order that Woolworths pay the sum of $27,000 sought by Mr Watkins in his original application.
3. The first ground of appeal directed to bias on the part of the Member has two broad components. So much is apparent from the elements of this ground as stated by Mr Watkins in his oral submissions to us. First, the claim of bias is said to arise from Mr Watkins' past dealing with Member Gilson, who decided a claim in his capacity as a Member of the former Administrative Decisions Tribunal (the ADT), to which Mr Watkins was a party. Mr Watkins requested the Member to recuse himself in the present proceedings because of that past involvement but that request was declined.
4. The second broad category of bias claimed by Mr Watkins arises from exchanges that occurred in the course of the two days of hearing before the Member. In material accompanying the Notice of Appeal, Mr Watkins contends that the Member gave "preferential treatment" to Woolworths in the hearing of the proceedings in that the Member failed to ask the "obvious hard questions" of Woolworths. Other matters raised by Mr Watkins within this second broad category of challenge will be addressed later in these reasons.
5. Before turning to the reply by Woolworths to the appeal, it is appropriate to mention briefly material attached to the Notice of Appeal that is critical of the Tribunal. To the extent that the criticism is an aspect of the available grounds of appeal, challenging the Member's decision on a question of law or as a matter of fact, those matters will be addressed. Other complaints raised by Mr Watkins seem to be addressed to the Tribunal's administrative processes in connection with the appeal. While we understand that Mr Watkins may have felt a sense of frustration arising from some of those processes, none of his complaints or criticisms in that context are, as a matter of law, relevant to support his claim for an order that $27,000 be paid to him by the Respondent arising from the illness he suffered in 2015. Moreover, those complaints or criticisms cannot impinge upon our determination as to whether his appeal grounds are made out, having regard to the provisions of the Tribunal Act and the applicable law. Any claimed shortcomings in the way in which the proceedings have been dealt with administratively by the Tribunal are to be regretted but cannot impact upon the substantive determination of the appeal.

The reply by Woolworths to the appeal

1. Woolworths' reply to the Notice of Appeal is succinct. It contends that the decision of the Member was correct. Further, it denies that there is any question of law or error of law arising from the conduct of the proceedings or from the decision of Member Gilson. In its reply, Woolworths states that it "cannot comment upon" the bias claimed by Mr Watkins but rejects the statement that it was given "preferential treatment" in the conduct of the hearing before the Member.
2. Further, it opposes leave to appeal being granted to argue any factual determination, contending that there was no medical evidence to support Mr Watkins claim to be paid $27,000.

Hearing of the appeal

1. Prior to the hearing before us, directions had been given by the Tribunal for the conduct of the appeal. Relevantly, on 14 November 2016, each party was directed to provide to the Tribunal and to the other party the evidence provided to the Tribunal below, submissions in support of their respective cases on appeal and the "sound recording of the hearing at first instance, if what happened at the hearing is being relied on, and a typed copy of the relevant parts." Each party appears to have complied, according to their own understanding of what was required, with the first two of those directions.
2. As to the third, we accept that Mr Watkins did seek and obtain a disc or discs of the sound recording of the hearing before the Member both on 19 January 2016 and on 1 March 2016. Neither recording was available to us at the hearing of the appeal. Given his limited resources, Mr Watkins explained that he could not listen to the recording that he obtained nor could he arrange for the relevant parts of those recordings to be "typed" or transcribed. As will be seen, that is a matter of some regret, at least as it impacted upon the timely delivery of these reasons.
3. At the hearing of the appeal, Mr Plumridge appeared for Woolworths. Mr Watkins sought and was given leave to participate from his home in Port Macquarie by telephone link. In the course of addressing Woolworths' case on appeal, Mr Plumridge acknowledged that prior to the hearing before the Member, Woolworths had omitted, through oversight, to serve Mr Watkins with the documents upon which it had relied, although those documents had been filed with the Tribunal. Those same documents have since been provided to Mr Watkins for the purpose of the appeal in accordance with the direction given on 14 November 2016.
4. In many circumstances, the revelation that documents provided to the Tribunal and apparently relied upon by the Tribunal in making a decision when those documents had not been provided to the other party is likely to have led to the appeal being upheld. At [11] of the Reasons, the Member refers to the "written evidence" provided to the Tribunal by the Respondent. Some of the documents are described in that paragraph.
5. However, there are a number of matters to be noticed in respect of those documents. First, it is not suggested that the Member was aware of Woolworths' failure to serve the documents upon Mr Watkins prior to the hearing or that Mr Watkins was unaware that those documents were before him for consideration. We observe that the situation may have been avoided by the Member had he required that each party identify the documents upon which they each relied. Particularly would that have been prudent, bearing in mind that he was addressing the matter with only one party present and the other "attending" by telephone.

Appeal Ground 1: Bias

1. As is understandable on the part of a litigant who is self-represented and not a trained lawyer, Mr Watkins did not seek to distinguish between a claim that the Member was actually biased and a claim of apprehended bias on the part of the Member. Nonetheless, the law makes apparent the need to make that distinction: there is a clear difference between the two when assessing both the relevant evidence and applicable legal principles.

Actual bias

1. In the case of actual bias, a subjective test is involved. As the authors of Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters) state at [9.40]: "A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy."
2. The essential contention made by Mr Watkins in this context turns upon the determination by Member Gilson, when a Member of the ADT, of proceedings to which Mr Watkins was a party. Mr Watkins states that he complained to the President of that Tribunal about the Member's conduct in that particular matter. Neither the content of the complaint nor the result of the complaint is in evidence before us. It is apparent that Mr Watkins was unsuccessful in those proceedings. Beyond that, we know nothing of the manner in which those proceedings were conducted or the basis upon which the proceedings were determined adversely to Mr Watkins.
3. Relevant to the claim of actual bias, is the circumstance that when the application was made by Mr Watkins on 1 March 2016 for Member Gilson to recuse himself by reason of the earlier proceedings and complaint, the Member stated that he had no recollection of the case giving rise to the complaint nor any recollection of the complaint being made about him. He acknowledged recognising Mr Watkins but stated that he had no recollection of the circumstance in which he had previously had any contact or dealing with Mr Watkins. While conduct may be demonstrative of actual bias, the conduct of the Member during the course of the hearing below and upon which Mr Watkins relies, does not establish actual bias. We will further address that conduct when considering the contention directed to apprehended bias.
4. We are satisfied that the evidence does not establish actual bias on the part of the Member. The heavy onus of proving the subjective state of mind of the Member, such that he had a predisposition to decide the matter adversely to Mr Watkins because of some prejudice against him, has not been satisfied.

Apprehended Bias

1. The principle upon which a claim for apprehended bias is to be determined is now well-settled by Australian case law. As stated by the plurality in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]: "It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of pre-judgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."
2. Expressed in those terms, the test is objective. The state of mind of Member Gilson, stating that he had no recollection of the events relating to the complaint upon which Mr Watkins relied, is not determinative of the claim of apprehended bias. Equally, because the test is objective, a perception on the part of Mr Watkins that the Member may have been predisposed to determine the proceedings adversely to him does not determine that the Member could not meet the standard of impartiality required by the test.
3. There are two further matters of principle to be recorded in this context. The first is that expressed by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. Having stated the test for apprehended bias in similar terms to that quoted above, the plurality in Ebner identified, at [8], the steps necessary to be taken in applying that test when apprehension of bias is claimed. First, it requires an identification of those matters that might lead the decision-maker to decide a case "other than on its legal and factual merits." The second step, described by the plurality as "no less important" than the first step, is the "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." Only when those steps have been taken can the reasonableness of the asserted apprehension be assessed.
4. The second matter of principle relevant to the application of the test for apprehended bias is the "knowledge" of the fair-minded observer. Modern authority makes clear that the fair-minded observer is attributed with knowledge of the salient facts upon which the claim is made and upon the processes of the tribunal or court and its members when determining disputes or actions that come before them (see, for example, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; [1990] HCA 31).

Apprehended Bias: The ADT Claim

1. The form of application by which Mr Watkins commenced his proceedings in the Tribunal has within it a heading "Hearing", beneath which there are four topics. Against each topic there is provision for the insertion of nominated information. Against the topic "Special Needs", calling for an indication as to whether an applicant has special needs such as "a hearing loop or wheelchair access", Mr Watkins has inserted the words "Not M. Gilson". When Mr Watkins was notified by the Registry of directions that had been made for the hearing of his application on 19 January 2016, he responded by letter, repeating his request that his matter "NOT [sic] be heard by Member M. Gilson."
2. Apart from the repeated request that Member Gilson not hear Mr Watkins' application to the Tribunal, nothing of which we are aware was then provided to the Tribunal to found his request. The fact that the Member had been appointed to hear Mr Watkins' application was the subject of a complaint made by Mr Watkins to the Tribunal on 24 May 2016, that is, after the proceedings had been determined by the Member. Neither the requests before hearing nor the subsequent complaint concerning the appointment of the Member, of themselves, establish a basis for asserting an apprehension of bias.
3. It is fundamental to the proper administration of justice that a litigant is not entitled to select the member of a court or tribunal who is to determine that litigant's cause. Equally, it is not only fundamental that the occupier of judicial or quasi-judicial office perform the functions that he or she is appointed to perform fairly and impartially but also that the holder of such office not readily accede to a recusal request unless a proper basis for that request is demonstrated. As Mason J observed in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
4. Earlier in the same paragraph of the judgment in that case, Mason J made observations upon circumstances analogous to some of those upon which Mr Watkins relied in advancing his bias submission. His Honour said (also at 352): "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established' [citation of authority omitted]."

Conclusion upon recusal based upon the ADT proceedings

1. We are not satisfied that Mr Watkins has established error on the part of the Member in failing to recuse himself on the basis of the complaint directed to the Member's conduct of the earlier ADT proceedings. We are unable to conclude from the contentions put to the Member or from the material in the letter accompanying Mr Watkins' complaint to this Tribunal in May last year that the fair-minded and reasonably informed observer might conclude from the material identified by Mr Watkins that the Member might not approach the present proceedings with a mind that was open to persuasion.
2. The absence of detail of both the Member's conduct in the earlier proceedings and of the complaint made by Mr Watkins to the President of the ADT is critical. There is no indication, for example, that the Member had made credit findings adverse to Mr Watkins nor that the subsequent complaint by him resulted in any finding that was critical of or adverse to the Member. Mr Watkins' dissatisfaction with the result of earlier litigation or, as he saw it, that the Member had failed to consider relevant evidence in arriving at the decision in that case, neither identifies conduct that reflects bias nor does it demonstrate the link between that conduct and the impartial determination of the proceedings before the Member in this Tribunal (Ebner at [8]).

Apprehended bias: the Member's conduct in the course of the proceedings

1. There are four aspects of this component of the apprehended bias claim. As three or those components were summarised by Mr Watkins in the appeal hearing before us, they are: 1. the Member's failure to rule on the evidence that Woolworths had destroyed the remaining fish returned by him for testing; 2. the Member's comment in the course of the hearing on 19 January 2016 that "I am in good health but could be crook tomorrow"; and 3. at the hearing on 1 March 2015, in the course of submissions by Mr Watkins, the Member said words to the following effect, "I might have gone on a soup diet too".
2. We note that when the recusal application was made to the Member on 1 March, Mr Watkins identified "the way in which you have dealt with the matter on 19 January" as a matter supporting his application. The matters to which that contention was addressed were not then articulated.
3. We were particularly concerned to pay close attention to the sound recordings of the proceeding because on the hearing of the appeal Mr Plumridge stated that the Member did appear to show "a lack of patience with Mr Watkins on each occasion or a lack of willingness to listen to him". It will be recalled that Mr Plumridge "attended" each hearing before the Member by telephone.
4. Upon listening to the sound recording of the proceedings, it is apparent that the Member spoke in plain terms and, at times, in a robust manner. His approach must be considered in context.
5. When the hearing commenced on 19 January, the Member first addressed Mr Watkins. It seems that he was reading the application together with supporting documents and raising questions arising from the documents as he read. Having done so, he stated that Mr Watkins needed to establish that the illness he suffered was caused by the fish purchased from Woolworths. When Mr Watkins responded by saying that Woolworths had the problem because its staff had destroyed the fish provided for testing, the Member replied by telling Mr Watkins that he had an onus to prove his case. The Member stated that Mr Watkins was required to establish that but for the consumption of the fish in question he would not have been ill.
6. In the course of that hearing, Mr Watkins repeated a number of times that Woolworths had destroyed the evidence and that prior to consuming the fish purchased from its supermarket, he was in good health, as evidenced by the Annual Health Assessment Report dated 20 January 2015 that he had provided to the Tribunal. It was in the context of Mr Watkins' reference to that report and his state of health prior to 13 March 2015 that the Member repeated the observation that the evidence filed to that point in time did not establish the link between the illness claimed by Mr Watkins and consumption of the fish purchased from Woolworths. In the course of that exchange, the Member made the observation that he was "in good health but could be crook tomorrow".

Conclusion on apprehended bias

1. For the reasons we have given, we do not uphold any of the bases upon which Mr Watkins relied to support a claim of apprehended bias on the part of the Member. That conclusion pertains even if we consider collectively the individual bases upon which the challenge of apprehended bias is made.

Appeal Ground 2: Reconsideration of the evidence

1. We have earlier identified s 80 of the Tribunal Act as the source of entitlement for Mr Watkins to pursue this appeal. Apart from the provisions of s 80(2)(b), the power of an Appeal Panel to grant leave to appeal where the appeal ground does not raise a question of law is further circumscribed in the present case by cl 12 of Sch 4 to the Tribunal Act. That clause relevantly 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).
2. The principles that should pertain in construing and applying those provisions are helpfully identified in Collins v Urban [2014] NSWCATAP 17. We will turn to those principles shortly.
3. In considering the question of leave, it is necessary to address the cause of action upon which Mr Watkins brought his "consumer claim". As we have earlier observed, the Member did not identify that cause of action.
4. The Member correctly observed at [6] of the Reasons, that the Tribunal had jurisdiction to entertain a claim of a kind brought by Mr Watkins because it involved "a claim by a consumer…that arises from a supply of goods and services by a supplier to the consumer…(for) the payment of a specified sum of money." The quoted phrase is from s 79E of the Fair Trading Act, defining a "consumer claim". The section is found in Pt 6A of that Act, being the Part of the Act containing provisions addressing the Tribunal's jurisdiction in relation to consumer claims.
5. As the Appeal Panel observed in Lam v Steve Jarvin Motors Pty Limited at [164], the provisions of Pt 6A of the Fair Trading Act do not, of themselves, create any cause of action. The cause of action upon which a "consumer claim" is founded needs to be identified independently of that Act.
6. The cause of action upon which Mr Watkins relies is not clear. Understandably, it is not identified, in terms, by him. Woolworths seems to have assumed that it was a claim to which the Competition and Consumer Act 2010 (Cth) related. The Australian Consumer Law (the ACL (NSW)) found in Sch 2 to that Act was adopted as a law of New South Wales by s 28 of the Fair Trading Act.

Conclusion on leave to appeal

1. Subject to the identification of questions of law, the prosecution of an appeal under s 80 of the Tribunal Act should not be seen simply as the opportunity to run the same case on the same evidence as was run before a Member at first instance nor should an appeal be regarded as an opportunity to run the case that, with the benefit of the Tribunal's decision, should have been run before the Member. In the case of appeals from decisions given in the Consumer and Commercial Division of the Tribunal, the grant of leave to appeal is expressly constrained as the provisions of cl 12 of Sch 4 to the Act make apparent.
2. In order to engage the discretion to grant leave in the present case, Mr Watkins is required to show that there was "a substantial miscarriage of justice" suffered by him as a result of the decision by the Member. That requires more than an expression of disagreement in or dissatisfaction with the decision from which the appeal is brought. As the Appeal Panel of the Tribunal stated in Collins v Urban at [76], a substantial miscarriage of justice within the meaning of cl 12(1) 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 circumstances in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
3. It will be apparent from what we have said that the requirements there identified for exercise of the discretion to give leave to appeal have not been satisfied by Mr Watkins. On the material available to the Member and that made available to us, it could not be said that the decision under appeal was "not fair and equitable". Further, the evidence before the Member does not "preponderate strongly", or at all, against the conclusion reached at first instance (cf Collins v Urban at [77]). There simply is no evidence identified or provided by Mr Watkins on appeal that is new and not available at the time the proceedings below were before the Member.
4. In short, no basis has been demonstrated for the exercise of our discretion to grant leave to appeal.

Conclusion and Orders

1. For the reasons we have stated, no question of law erroneously determined by the Member, has been demonstrated. Neither actual bias nor apprehended bias has been demonstrated. Further, no basis has been established for the exercise of our discretion to grant leave to appeal.
2. Accordingly, we make the following Orders: 1. Extend time for appeal to 28 September 2016. 2. Leave to appeal is refused. 3. The appeal is dismissed.

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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: 30 May 2017