Watkins v Woolworths Limited - [2017] NSWCATAP 125 - NSWCATAP 2016 case summary — Zoe

NSWNSWCATAP

Watkins v Woolworths Limited

[2017] NSWCATAP 125

NCAT Appeal Panel|2016-12-16|Before: Re J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2016-12-16

Before

Re J

Catchwords

ADMINISTRATIVE LAW - Civil and Administrative Tribunal - bias - whether actual or apprehended bias established - applicable principles
[2000] HCA 63 Lam v Steve Jarvin Motors Pty Limited [2016] NSWCATAP 186 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
[1990] HCA 31 McGovern v Ku-ring-gai Council (2008) NSWLR 504
[2008] NSWCA 209 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427

Source

Original judgment source is linked above.

Catchwords

ADMINISTRATIVE LAW - Civil and Administrative Tribunal - bias - whether actual or apprehended bias established - applicable principles[2000] HCA 63 Lam v Steve Jarvin Motors Pty Limited [2016] NSWCATAP 186 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70[1990] HCA 31 McGovern v Ku-ring-gai Council (2008) NSWLR 504[2008] NSWCA 209 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427[2011] HCA 48

Judgment (19 paragraphs)

[1]

rEASON FOR DECISION

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.
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.

[2]

Background

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.
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.
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.
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.
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."
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.
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.
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.

[4]

The decision at first instance

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.
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.
The statement that "there is no evidence" of any medical assistance being sought until 15 May 2015 and then only by way of request for a pathology test is clearly inaccurate. There was evidence given by Mr Watkins that he had visited a general practitioner on 1 April and again on 15 May. That evidence was not challenged by Woolworths. In this context, an accurate summary of the evidence before the Member would be that, apart from the pathology report following the 15 May visit by Mr Watkins to his general practitioner, there was no evidence before the Tribunal from any medical practitioner consulted by him as to the medical condition that he claimed to have first suffered on or about 13 or 14 March 2015 and which he says continued for many months thereafter.
So much is apparent from the Member's findings as expressed in [17]-[19] of the Reasons: "17 The applicant has: (a) Failed to establish the nature of the illness allegedly experienced on or before 17 March 2015. (b) Failed to establish that the alleged illness was caused by the consumption of the frozen fish. (c) Failed to establish that medical assistance was sought before 15 May 2015. (d) Failed to establish any ongoing or long term impacts of the alleged illness. 18 In these proceedings the applicant must meet the onus of proof. The standard of proof applied in these proceedings is the balance of probabilities. Thus the applicant is required to prove on the balance of probabilities what he asserts. 19 For the reasons given above, I find that the applicant falls well short of discharging the onus of proof. There is no evidence before me that would cause me to find a legal obligation on the respondent. The claim fails and is therefore dismissed."

[6]

The grounds of appeal

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.
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.
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.
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.
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.

[8]

Hearing of the appeal

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.
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.
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.
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.
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.
Secondly, the documents in question appear to contain material, the substance of which was known to Mr Watkins prior to the hearing below. A number of those documents comprise correspondence passing between the parties, duplicating correspondence upon which Mr Watkins himself relied and provided to the Tribunal. Among Woolworths' documents was the laboratory test result upon the supplier-retained frozen fish sample from the batch of fish sold to Mr Watkins. While Mr Watkins had not been provided with the laboratory certificate containing the test results, the substance of or conclusion from those results was conveyed to him on about 4 April 2014. The only other document of note that was not provided to Mr Watkins at or prior to the hearing below was an email trail of internal communications among employees of Woolworths concerning Mr Watkins' complaint.
The third observation we make in respect of the Respondent's documents is that although they are referred to in the Reasons as documents that the Member had before him, Mr Watkins does not identify, as a ground of appeal, the circumstance that the documents were not provided to him for the purpose of the hearing below yet referred to by the Member in the Reasons. Related to this circumstance is the fact that although the documents were provided prior to the hearing of the appeal before us, Mr Watkins did not indicate that he challenged the relevance of any of the documents; that he required more time to consider the documents or that he would have conducted the hearing before the Member differently had they been provided to him by, for example, requiring the author of any document to be available for questioning. His observation in relation to the laboratory test result of the fish sample was that, as a laboratory apparently used by the fish supplier, the objectivity of the results should be questioned. Beyond that expression of scepticism, nothing further was put to found rejection of the test results.
In summary, the fact that the documents provided by Woolworths to the Member was not known to Mr Watkins at the hearing below is, in the circumstances we have described, not a basis that would, considered alone, cause us to exercise our power under s 81 of the Tribunal Act to allow the appeal.
At the hearing of the appeal, the focus of Mr Watkins' contentions was upon his first ground of appeal, namely bias. Having regard to the bases upon which that ground was put, particularly his contentions directed to the manner in which the hearing was conducted by the Member, we agreed that, when received, we would listen to the disc or discs prepared from the sound recording of the proceedings. Both Mr Watkins and Mr Plumridge agreed that this course was appropriate and that it was not necessary for the parties to be present while we undertook that task.
Following the hearing, we ordered the relevant sound recordings. Initially, only one disc was received. As it happened, that disc only recorded the hearing held before the Member on 19 January 2016. The second recording of the hearing on 1 March 2016 was then ordered and duly received.
With that understanding of the manner in which the appeal was conducted, it is appropriate now to consider Mr Watkins' grounds of appeal as we have endeavoured to distil them.

[10]

Actual bias

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."
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.
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.
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.

[11]

Apprehended Bias

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."
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.
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.
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).
It is next necessary to apply the test and the principles pertaining to its application to the material before us. That material comprises the written material filed by Mr Watkins and, importantly, the sound recording of the proceedings on each of the two hearing days. We have carefully listened to each recording.

[12]

Apprehended Bias: The ADT Claim

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."
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.
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."
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]."
At no time during the course of the hearing on 19 January 2016 did Mr Watkins make an application that Member Gilson recuse himself. That application was made at the outset of the hearing on 1 March 2016. There does not appear to have been any written material before the Member at that time, directed to the recusal application.
We have listened to the recusal application made by Mr Watkins on 1 March 2016. It is brief. Mr Watkins referred to the request in his application to the Tribunal that the Member not hear the matter. He contended that in the proceedings before the ADT, the Member was biased, had not read or considered part of the evidence and that a complaint has been made to the President of the Tribunal following the hearing and decision in those proceedings. In making his recusal application to the Member, Mr Watkins did not identify the basis upon which he alleged any bias to arise from the manner in which those earlier proceedings had been conducted by the Member and which was the subject of his compliant. Nor did he articulate in his submission the outcome of his complaint.
In his complaint to this Tribunal of 24 May 2016, he infers that he was dissatisfied with the manner in which his complaint to the ADT President was determined but beyond that we know nothing of the outcome. There is no indication that Mr Watkins exercised a right of appeal from the decision made in the ADT.
At that point of the recusal application, the Member stated to Mr Watkins that he neither recalled the ADT proceedings in which Mr Watkins was a party nor the fact that a complaint had been made against him. The Member did then state that there would be "no lack of objectivity in this matter."
When asked by the Member to summarise the basis of his application for recusal, Mr Watkins replied by stating that it was the Member's conduct in the ADT proceedings as well as the way in which the Member had dealt with the present matter on 19 January 2016. We will address that second basis for recusal later in these reasons.

[14]

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

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".
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.
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.
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.
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.
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".
Upon reflection, that was a remark that could have been avoided. Nonetheless, it was made to illustrate to Mr Watkins the need for him to provide evidence in order to establish any claim for damages that he might have. It was a remark made to demonstrate, in a homely way, the lack of logic, as the Member saw it, between earlier good health and later illness, in seeking to establish that the consumption of the fish purchased from Woolworths was the cause of his health change.
Exchanges between Mr Watkins and the Member continued in a similar vein. Mr Watkins repeatedly criticised Woolworths for having destroyed the fish package returned by him. He appeared to rely upon that fact together with the fact that Woolworths' contacts with him, including by letter, acknowledged concern for his welfare and expressed regret that he was ill, as sufficient to justify his claim. Mr Watkins does not appear to engage with the Member when the latter stated, in different ways, that the evidence to date did not establish a proper basis upon which to found his claim against Woolworths. No doubt to illustrate important omissions, the Member then inquired of Mr Watkins as to his attendance upon medical practitioners, pointing out that no evidence had been provided to the Tribunal from any treating doctor supporting the claim that was made.
Identifying the difficulties and no doubt conscious of the preference to resolve the dispute expeditiously, the Member suggested that he facilitate a process of conciliation (cf s 37 of the Tribunal Act). The parties acceded to that suggestion but after a short time it became apparent that the process would not yield resolution of the dispute.
When the hearing proper resumed, Mr Watkins again repeated his complaint about the destruction of the fish returned by him without testing. The Member reiterated his earlier response directed to the onus of proof, observing that Mr Watkins was "missing the point" by placing reliance upon the destruction of the returned fish and Woolworths letters expressing regret that Mr Watkins was ill. It was then that Mr Watkins requested the Member to "decide or rule upon the destruction of the returned fish". The Member stated that he would do so "at the appropriate time".
Having obtained confirmation from Mr Plumridge that Woolworths maintained its denial of liability for the claim made by Mr Watkins, essentially because of the absence of relevant evidence, including medical evidence, supporting the claim, the Member stated that he would not "formally take evidence at this stage". After repeating that the evidence filed to date by Mr Watkins did not prove his case, he directed that Mr Watkins file any further evidence upon which he relied within 14 days. A direction was made that Woolworths file any further evidence upon which it would rely 14 days after receipt of evidence from Mr Watkins.
Neither Mr Watkins nor Woolworths filed any further evidence in accordance with that direction.
We do not discern either in the specific statement made by the Member as to his state of health nor from the manner in which he dealt with the proceedings on 19 January 2015, any conduct of which the fair-minded observer might conclude that the Member might not determine the proceedings impartially. While some of the observations made by the Member may have been perceived by Mr Watkins to be unduly robust or indelicate in his analogies, the overwhelming impression gained from listening to the exchanges with Mr Watkins was of the Member seeking to assist Mr Watkins by identifying where he saw the shortcomings in the evidence to be, culminating in his decision to stand over the proceedings to afford the opportunity for Mr Watkins to file further evidence.
It may have been the direct manner in which the Member responded to the repeated contentions of Mr Watkins, regarded by the Member as "missing the point", that caused Mr Plumridge to make the observations earlier recorded at [62]. However, a fair and objective assessment of the hearing on 19 January, including the directions for the filing of further evidence then given, does not lead us to conclude that the Member was not open to persuasion as to the merits of Mr Watkins' case, on the assumption that the evidentiary gaps were filled (cf Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]; McGovern v Ku-ring-gai Council (2008) NSWLR 504; [2008] NSWCA 209 at [12], [24]).
As we have earlier recorded, when the hearing resumed on 1 March 2016, Mr Watkins made his recusal application to the Member. Following reference to the manner in which the proceedings were conducted on 19 January, in the course of making that application, including reference to the destruction of the returned fish, the Member responded by saying, "You are not listening. I said you had major problems with your evidence and I then gave you the opportunity to put on further evidence." The Member then declined "to remove" himself from the proceedings.
Having declined the recusal application, the Member explained to Mr Watkins and to Mr Plumridge the process he proposed to follow for the hearing on that day. He stated that Mr Watkins would have the opportunity to present his evidence and submissions followed by Mr Plumridge taking the same course. Mr Watkins was told that he would be able to respond to the case made by Woolworths. The sound recording confirms that the process outlined by the Member was followed.
In the course of hearing from Mr Watkins, the Member questioned him as to his visits to seek medical attention. When asked whether he had documents evidencing the dates upon which he had visited medical practitioners, Mr Watkins responded, "They are at home". In that same context, the Member remarked that Mr Watkins had not provided evidence from any doctor addressing his health on or after 13 March 2015, other than the pathology result to which earlier reference has been made.
The Member also inquired of Mr Watkins as to how his claim of $27,000 was determined. Mr Watkins responded by stating that it represented his "calculation of what 2015 was worth to me: there were many months in which I could not lead a normal life".
In amplification of the latter statement, Mr Watkins said that for some period he could only consume soup, a statement he said was supported by the letter from his neighbour which he provided to the Tribunal. In response to that statement, the Member said words to the effect "You might have decided to go on a soup diet." In context, that remark was made as the Member was again attempting to indicate to Mr Watkins that he was required to establish a causal link between the fish he had consumed from the packet purchased at Woolworths supermarket and the illness he suffered, requiring recourse to a particular diet.
As before, the purpose of that remark by the Member, when addressing a lay litigant appearing in person, may have been more sensitively expressed. However, the context of the remark does not seem to us to give rise to an apprehension of bias. Indeed, we conclude that no part of the proceedings conducted on 1 March 2016 gives rise to an apprehension of bias on the part of the Member applying the test and principles earlier discussed.
No less is that the case in respect of the remaining basis upon which Mr Watkins relies for his apprehended bias claim, namely the failure of the Member to include in the Reasons a determination of the relevance of Woolworths' destruction of the returned fish before being tested. The fact that the fish remaining from the package purchased by Mr Watkins was returned to Woolworths is recorded in the Reasons, as is the fact that the returned package was not frozen and thereby unable to be tested (Reasons at [9] and [14(c)]). No express finding is made in the Reasons as to the consequence of those events although the reasons, read as a whole, indicate that those events did not bear upon the determination that Mr Watkins had not led evidence satisfying the onus of proof in necessary to establish his legal entitlement to claim. Of more significance for present purposes is the fact that Mr Watkins has not demonstrated why the failure to make a finding upon this aspect of his claim would lead to a conclusion that the apprehended bias test was satisfied in his favour.
The fourth aspect of the apprehended bias claim, related to the Member's conduct, arises from the grounds stated in the Notice of Appeal. In the Notice, Mr Watkins contends that Woolworths received "preferential treatment" from Member Gilson. Although that contention was not identified at the hearing before us as a basis for asserting bias, we appreciate that Mr Watkins relied upon the written material he provided to the Tribunal in support of his appeal.
What is said to constitute the "preferential treatment" of Woolworths is not identified. However, we apprehend that it is reflected in the contention, also made in the Notice, that the Member "failed to ask the hard questions".
If the quoted phrases provide a further basis upon which Mr Watkins contends that the Member was biased, we are not persuaded that the contention is made good. It seems to be founded upon a misconception of the role that the Member was required to perform in adjudicating upon the claim for damages made by Mr Watkins.
Section 38 of the Tribunal Act dispenses with the need for the Tribunal to adhere to the rules of evidence in matters of the present kind. The section also allows the Tribunal to act "with as little formality as the circumstances of the case permit and…without regard to technicalities or legal forms." However, that relaxation of the rules and procedures required to be observed in traditional courts does not authorise a Member, exercising the jurisdiction of the Tribunal in a case of the present kind, to conduct the proceedings as if an advocate for a party to the proceedings.
At the hearing on 19 January 2016 the Member clearly identified to Mr Watkins that he, Mr Watkins, had not provided material to the Tribunal that was probative of the claim he sought to advance against Woolworths. The Member did so in circumstances where the absence of evidence to support the case reflected the defence advanced by Woolworths. That defence was not, in the circumstances, technical, as Woolworths had the negative test result on the batch-sample of fish purchased by Mr Watkins and had not been provided with any medical evidence supporting Mr Watkins' claim. There were no relevant "hard questions" that could then reasonably have been addressed by the Member to the Woolworths representative.
Consistent with the provisions of subsection (5) and (6) of s 38, the Member identified to Mr Watkins, in clear and direct terms, the need for evidence to establish his case. The nature of the further evidence was identified and Mr Watkins afforded the opportunity to provide that evidence before the hearing proceeded further. Nothing that occurred on 19 January 2015 is indicative of "preferential treatment" having been afforded to Woolworths.
That situation did not change when the hearing of the application resumed on 1 March. In the absence of any further evidence from Mr Watkins probative of his claim, there remained no "hard questions" to be directed by the Member to Woolworths.
We find no objective support for a contention by Mr Watkins that the Member gave "preferential treatment" to Woolworths in the course of hearing the proceedings. The contention does not satisfy the objective test for a finding of apprehended bias.

[16]

Appeal Ground 2: Reconsideration of the evidence

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).
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.
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.
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.
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.
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.
However, in the absence of evidence of the kind identified by the Member both at the hearing and in the Reasons, it matters not whether the claim by Mr Watkins was founded in contract, in tort (negligence), the ACL (NSW) or the Competition and Consumer Act, they being the possible causes of action available to him. A cause of action arising under any one or more of those possible bases for claim required, at least, the establishment of a causal connection between the fish purchased by Mr Watkins from Woolworths and the illness for which he claimed damages. As his claim was confined to damages for personal injury or non-economic loss, evidence was also necessary to support the determination of damages or loss.
The Member determined that no relevant evidence addressing these matters was provided to him. Having considered the oral evidence given by Mr Watkins at the two hearings before the Member, as recorded in the discs to which we have listened, and the documents Mr Watkins provided to the Tribunal, the Member was correct in reaching that conclusion, essentially for the reasons that he gave.
Nothing new of any substance is found in the documents provided by Mr Watkins for the purpose of this appeal. While Mr Watkins has now provided a statement from Medicare for calendar year 2015, that statement only identifies the dates of each consultation had by Mr Watkins with nominated medical practitioners to whom a Medicare payment was made. That statement contains no diagnostic information nor does it record the medical purpose of any consultation, save that where a pathology service has been provided, the test undertaken but not the result is recorded. That information adds nothing of relevance to link the illness claimed by Mr Watkins to the consumption of fish he purchased from Woolworths.
There are two matters upon which significant reliance was placed by Mr Watkins in seeking to sustain his entitlement to damages. Those matters require brief observation by us. They are: 1. reliance upon the package date of the frozen fish that he purchased; and 2. destruction of the returned fish and package before being tested as he had requested should be done.
The 2013 package date of the frozen fish purchased by Mr Watkins does not, of itself, prove anything of relevance to Mr Watkins' claim. That date could only be relevant if evidence from a qualified person established that fish of the kind purchased and packaged on that date, even if maintained in a frozen state until thawed for cooking, is likely to have degraded to the point that it was, in turn, likely to give rise to illness if thawed, cooked and consumed when purchased in January 2015.
Evidence of the kind that we have identified was not provided by Mr Watkins. As a result, he is not assisted by reference to the package date. The consequence that Mr Watkins assumes from the package date is not self-evident. Evidence to support the assumption was required.
There can be no doubt that failure to freeze the residue fish and package returned by Mr Watkins to Woolworths was, to say the least, unfortunate. Mr Watkins contends that the failure to maintain the returned package in a frozen state until it could be tested was either negligent or deliberate. He implies that Woolworths must have suspected, if not known, that the returned fish was degraded or biologically contaminated, with the prospect that it was likely to be the cause of his illness.
We are unable to draw any inference from the documentary material available to the Member or to us supporting an implication to that effect. Suspicion alone, even if held, is not a basis, in law, upon which to make a determination of the kind necessary to support Mr Watkins' claim. To draw the implication sought by Mr Watkins would not only require us to infer that the failure to refrigerate was deliberate but also the likelihood that, if subjected to laboratory analysis, that analysis would show, or is likely to have shown, some form of biological degradation or chemical contaminant such as could lead to illness of the kind suffered by Mr Watkins.
There is no evidence before us that would enable such an inference to be drawn. The test results from the batch sample to which we have earlier referred weigh against the drawing of such an inference.
Further, there is no medical evidence before us that links the illness suffered with the fish consumed by Mr Watkins. While critical of Woolworths for not freezing the returned fish until tested, we do not understand Mr Watkins to challenge the position of Woolworths that any laboratory analysis of the unfrozen remnant would be meaningless in demonstrating its state when purchased or even when consumed.by him. Apparently accepting that to be the case, Mr Watkins sought to explain the absence of evidence by asserting that no evidence could ever be garnered that would link the fish that he consumed with his subsequent illness. We do not accept that assertion.
It is conceivable that medical evidence may be available in a case of the present kind, indicating that the symptoms of the consumer are consistent with the consumption of contaminated or degraded food (fish) and, given the onset of those symptoms relative to the time of its consumption, the food (fish) is the likely cause of those symptoms. Evidence of that kind may have gone some way in in establishing the causal link that the Member identified as being required but absent. We do not suggest that it is the only evidence relevant to the establishment of that link. It is sufficient to respond to the position taken by Mr Watkins, in substance asserting that Woolworths' failure to preserve the returned fish in a frozen state until tested deprived him of the chance to establish that his illness was caused by the consumption of that fish.

[17]

Conclusion on leave to appeal

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.
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."
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.
In short, no basis has been demonstrated for the exercise of our discretion to grant leave to appeal.

Watkins v Woolworths Limited

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (13)

Cited By (2)