White v Carlton Tow Bars Pty Ltd t/a TJM Southside

NCAT Appeal Panel|2014-07-28|Before: Wright J

reasons for decision 1The appellant has applied for a summons to be issued for the purpose of obtaining evidence in relation to his appeal. For the reasons set out below this application is refused. The refusal of this application is not intended to involve any criticism of the appellant who has, as far as the Appeal Panel can discern, conscientiously attempted to prepare an appropriate draft form of summons but has been unsuccessful. Accordingly, the Appeal Panel has taken the trouble to indicate in these reasons how the problems with the present draft form of the summons can be overcome. It is noted that the hearing of this appeal is not due to take place until 2 October 2014 (a date chosen to suit the appellant). Accordingly, there should be sufficient time for a fresh summons to be prepared and served, if the appellant wishes to do so. 2The Appeal Panel has dealt with this matter in greater detail than might otherwise be appropriate having regard to the amount involved in these proceedings in order to provide some general guidance in relation to the issue of summonses in proceedings in the Tribunal.

Background 3On 15 May 2014, a Member sitting in the Consumer and Commercial Division of the Tribunal dismissed the appellant's application in proceeding number MV13/57046. In this application the appellant had claimed an amount of $1,938.29 which was said to be the amount of the loss suffered by the appellant as a result of a "5th wheel hitch" installed by the respondent being faulty and the installation not having been done in a proper and workmanlike manner or having been defective. The wheel hitch was installed on the appellant's Holden Colorado motor vehicle. 4In general terms, the Tribunal below dismissed the application because it was not satisfied that: (1)the goods supplied were faulty or that the installation was defective or was not done in a proper and workmanlike manner; (2)the cause of the difficulties experienced by the appellant in relation to his vehicle as a result of which he incurred expenses was as the appellant alleged. 5On 29 May 2014 the appellant lodged a notice of appeal against the order dismissing his application. In that notice of appeal, the appellant quite correctly indicated that he was seeking leave to appeal. The use by the Tribunal of a multipurpose notice of appeal form which includes both an application for leave to appeal and the appeal itself as well as other matters has been explained in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [8]. 6As the decision appealed from was made in the Consumer and Commercial Division of the Tribunal, in order to be able to grant leave to appeal the Appeal Panel is required to be satisfied that the appellant may have suffered a substantial miscarriage of justice because: (1)the decision of the Tribunal under appeal was not fair and equitable, or (2)the decision of the Tribunal under appeal was against the weight of evidence, or (3)significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with),

Relevant Legislative Provisions 12Under s 48 of the Act the Tribunal may issue summonses for the purposes of the Act. Section 48 provides: 48 Issue of summons (1) A summons for the purposes of this Act may be issued by a registrar: (a) on the application of a party to the proceedings, or (b) at the direction of the Tribunal. Note. See also section 46 (2) (b). (2) The fee (if any) prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings. (3) Such a summons must be signed by a registrar or as otherwise prescribed by the procedural rules and may require the person to whom it is addressed: (a) to attend and give evidence, or (b) to attend and produce documents or other things, or both. (4) The regulations may make provision for or with respect to excusing, in specified circumstances, a person who produces documents or other things in answer to a summons from attendance at the Tribunal. (5) A summons may be served within or outside the State. 13Further provisions relating to the issuing of summonses and related matters are dealt with in rule 34 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). Rule 34 provides: 34 Issue of summons (1) An application by a party to proceedings for a summons under section 48 of the Act must be made in or to the effect of the approved form. (2) If a summons is issued, the summons (and any sealed copies of the summons required to be served under subrule (4)) must be served on the person named in the summons: (a) where the summons is issued at the direction of the Tribunal-by or on behalf of a registrar, or (b) where the summons is issued on the application of a party-by or on behalf of that party. (3) The summons must be served on the person named in the summons at least 5 days (or within such other shorter or longer period as a registrar may direct) before the return date specified in the summons unless the person named in the summons has agreed to the later service of the summons. Note. Rule 6 makes provision for the reckoning of time for the purposes of these rules. (4) A sealed copy of the summons must be served on each party to the proceedings before the return date specified in the summons, except as provided by subrule (5). (5) A sealed copy of the summons is not required to be served under subrule (4) on a party to proceedings if the party applied for the summons or is the person named in the summons. (6) A person who is summoned to attend and produce a document or thing is not required to attend the Tribunal if: (a) the person delivers or sends the summons or a copy of it and the document or thing to a registrar at the address specified for the purpose in the summons, and (b) the document or thing is received not less than 2 clear days before the date specified in the summons for attendance. (7) Unless a summons specifically requires the production of the original, the person summoned may produce a copy of any document required to be produced by the summons. (8) A copy of a document for the purposes of subrule (6) or (7) may be: (a) a photocopy, or (b) in any electronic form that the party who applied for the summons has indicated will be acceptable. 14Various forms of application for the issue of a summons (depending on whether it is to be served interstate or not) can be obtained from the Tribunal's registry and are also available on the Tribunal's website (for example at http://www.ncat.nsw.gov.au/ncat/administrative_equal_opp/aed_forms.html ). 15Finally, there is a procedural direction made under s 26 of the Act relating to summonses, Procedural Direction 2 (February 2014) - Summonses. That procedural direction is available on the Tribunal's website (at http://www.ncat.nsw.gov.au/ncat/publications_and_resources/procedural_directions.html ). It provides in part: 9. To apply for the issue of a summons, a party must (unless a registrar dispenses with any of these requirements): (a) complete an Application for Summons form (a copy of this form can be downloaded from the Tribunal's website at www.ncat.nsw.gov.au or obtained from an NCAT Registry); (b) lodge the completed Application for Summons together with any required documents with the Tribunal; and (c) pay the relevant fee. ... 12. If a registrar or Member decides to issue the summons: (a) the party who applied for the summons must lodge with the Tribunal the summons completed in accordance with the registrar's or Member's decision; and (b) the registrar or Member is to: (i) specify in the summons the date and time by which the summons is to be served on the person named in the summons; (ii) specify in the summons the date and time by which the person named in the summons is required to comply with the summons; (iii) sign and seal the summons; and (iv) provide the summons to the party who applied for the summons. ... 15. The person required to comply with the summons should be named as follows in the summons: (a) If an individual, use the individual's full name; (b) If a corporation, state the corporation's full name (including for example "Ltd" or "Pty Ltd" as the case may be) followed by the words "by its proper officer"; (c) If the holder of a governmental office or position, use the official description of the office or post held; and (d) If a government department or agency, state the department's or agency's name followed by the words "by its proper officer". 16In addition, in paragraphs 16 to 23, Procedural Direction 2 deals with service of the summons once it is issued. Where, as in this case, the summons is issued on the application of a party, it is the responsibility of that party to serve the summons on the person who is required to attend and produce documents. In addition, if a summons is to be served outside New South Wales the procedures specified in the Service and Execution of Process Act 1992 (Cth) must be followed. In this regard, paragraphs 16 and 23 of Procedural Direction 2 provide: 16. Where a summons is issued on the application of a party that party must serve the sealed summons and any accompanying documents on the person named in the summons by the date and time for service specified in the summons. ... 23. A summons can be served outside New South Wales under s 48(5) of the Act but the procedure under the Service and Execution of Process Act 1992 (Cth) must be followed. This requires leave to be obtained under s 57 of that Act. Leave can only be granted if the person granting leave is satisfied that the giving of the evidence and/or production of documents or things is necessary in the interests of justice and that there will be enough time for the person to comply with the summons or to ask for relief from compliance, without inconvenience. A summons served outside New South Wales must be accompanied by a copy of the form required under the Service and Execution of Process Act. 17The Tribunal has attempted to assist parties to comply with the procedures under the Commonwealth Service and Execution of Process Act 1992 by having an Application for leave to serve summons interstate and a form of Summons to give evidence for service interstate available at the registry and on the Tribunal's website (for example at http://www.ncat.nsw.gov.au/ncat/administrative_equal_opp/aed_forms.html ).

Problems with the Form of Summons Submitted by the Appellant 18It appears that the appellant lodged a form of summons but no application for a summons to be issued. This would not necessarily have been a problem if the summons provided had been in an appropriate form for service. Unfortunately it was not in a number of respects. Before considering the problems in the form of summons proposed it is worthwhile pausing to observe that the requirement for a party to file an application for a summons to be issued is not a useless formality. It is designed to ensure that parties are assisted to prepare summonses correctly and that the documents required to be produced are "apparently relevant" to the issues in the proceedings so that, to use a more legalistic expression, the summons will have a "legitimate forensic purpose" - see for example Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. The problems with the summons the appellant has drafted are as set out in the following paragraphs. 19First, the draft form of summons did not identify correctly the person who was ordered to comply with the summons, in accordance with paragraph 15(b) of Procedural Direction 2 quoted above. The draft summons is addressed to "GMH - Holden" which is likely to be a corporation or a name under which the corporation trades. The relevant corporation should be correctly identified by its full name including "Pty Ltd" or "Limited" as appropriate. In addition, Procedural Direction 2 requires a summons for the purpose of having a corporation produce documents to be addressed to the corporation, properly identified, "by its proper officer". The basis for this requirement was explained by the High Court in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 146. 20This is not a mere technicality. Like a subpoena issued by a Court, a summons is a formal order of the Tribunal. If a person fails to comply with a summons without lawful excuse, that person may be liable to punishment, or to be otherwise dealt with, under the enforcement provisions found in Part 5, ss 71 to 78, of the Act. As a result it is necessary for a summons to identify with clarity and precision the person who is required to comply with the summons. 21Secondly, the address provided is a post office box. Generally, a document can be served on a corporation by any of the means identified in s 109X of the Corporations Act 2001 (Cth) and this is usually by: (1)leaving the document at or posting it to the registered office of the corporation; or (2)delivering the document personally to a director of the corporation who resides in Australia, (see s 109X(1)(a) and (b) and paragraph 21(d)(i) and (ii) of Procedural Direction 2 of the Tribunal.) A post office box is most unlikely to be the registered office of a corporation. 22Thirdly, Part B of the draft form of summons, does not actually identify any documents which are to be produced. Rather what is set out in the relevant portion is a series of 9 questions as follows: 1. Indicate the numbers of computers in a 2012 LX Holden Colorado Crew, 2.8L, 4x4, 6 speed, automatic... GMH - SRN 136839521 VIN - MMU148DH605592. 2. a) Indicate if and how (the type of network) these computers are linked to each (daisy chained/hub). b) Does GMH license access to this operating system to other non GMH organisations - Could Cequent/Hayman Reese's Electronic Control Unit duplicate/gain access to Colorado's computer system without causing errors? 3. Indicate the function/s and/or operational parameters of each computer without the SPS software installed. 4. Indicate the extent (quantitative and qualitative) that these operational parameters are changed when the SPS software is installed and activated while towing a 3.49 tonne 5th wheel caravan. 5. a) Would towing this 3.49 tonne caravan over a sandy (extra slippage) and slightly corrugated road cause the Automatic Braking System ABS warning to come on if this SPS software was not installed? Would this be a breaking safety issue? b) Would this warning come on if the SPS software was installed and activated? 6. a) Would towing this 3.49 tonne caravan over a sandy (extra drag) and slightly corrugated road (Diamantina Development Rod) cause the Electronic Stability Control ESC warning to come on if this SPS software was not installed? Would this contribute to vehicle instability? b) Would this warning come on if the SPS software was installed and activated? 7. a) Would towing the above mentioned caravan over the above mentioned road while driving in 4WD (possible labouring in higher gears - TCM) at 80 kph or less cause other warning lights such as 4WD service warning, cruise control, etc, if this SPS software was not installed? Would cause undue wear on the Colorado's hydraulics/gears? b) Would this/these warnings come on if the SPS software was installed and activated? 8. a) Would towing the above mentioned caravan over the above mentioned road have caused an engine service warning to come on if the engine temperature was below half way and the air temp was below 22C (9:30am), that oil and other fluids were satisfactory, no unusual noises or vibrations while stationary or moving? (b) If there was an engine issue like a crake in the air inlet manifold (see Emerald GMH) would it have shown up first as an engine service warning and not an electronic stability control ESC warning? 9. If the Colorado (with GMH trailer harness and software installed) is started up without being connected to may caravan ... is then connected without turning off the vehicle and then driving off - is the SPS software/computer activated for the towing mode? That is does the Colorado have to start up with the caravan electrically connected in order to get the benefits of GMH SPS software? 23These questions are, in effect, what Courts would call "interrogatories". Interrogatories are questions that a party may ask of another party before the hearing. The Tribunal has no formal procedure of this kind. Furthermore, the questions in the present case are directed to a third person who is not a party to the proceedings. The power to issue summonses under s 48 is limited to summonses requiring the person to whom it is addressed: (1)to attend and give evidence, or (2)to attend and produce documents or other things, or (3)both to attend and give evidence and to produce documents or other things. It does not extend to a power to require a third party to answer written questions such as those quoted above. 24One way for the appellant to overcome this problem is for the summons to require production of documents that contain or are likely to contain the information he is seeking. 25Fourthly, if the summons is to be served outside New South Wales and in Victoria as the address given by the appellant suggests, leave to do so is required under s 57 of the Service and Execution of Process Act. The appellant has not sought this leave. In addition, the summons must be accompanied by the designated form under that Act (Form 5). The draft form of summons provided by the appellant does not do so. Form 5 is provided as part of the form of summons to give evidence for service interstate available at the registry and on the Tribunal's website (for example at http://www.ncat.nsw.gov.au/ncat/administrative_equal_opp/aed_forms.html ).

Conclusion 26For these reasons, the summons should not be issued in the draft form put forward by the appellant. Accordingly, the appellant's application to issue a summons in the form of the draft summons filed by him is refused.

Further matters 27This conclusion does not preclude the appellant from making a fresh application taking into account the matters raised in these reasons for decision. If he decides to do so, he should give careful consideration to using the following forms: (1)application for summons to be issued; (2)application for leave to serve summons interstate; and (3)summons to give evidence for service interstate, all of which are available at the registry and on the Tribunal's website (for example at http://www.ncat.nsw.gov.au/ncat/administrative_equal_opp/aed_forms.html ) 28If the appellant decides to apply for the issue of a new summons in the appropriate form, he could seek a waiver by a Registrar of the requirement to pay the applicable fee. He has already paid one such fee in respect of the present application and should not be required to pay another. If he seeks such a waiver, he may bring these reasons for decision to the attention of the Registrar. 29If a new summons to produce documents is issued at the request of the appellant, he is required to serve the summons on the person who is required to comply with the summons - see Procedural Direction 2 paragraph 16 (quoted above). The Tribunal will not serve the summons for him. 30Finally, just because a summons to produce documents may be issued and documents may be produced in response, it does not follow that the documents will necessarily be relevant to the appellant's application for leave to appeal or that they will necessarily be admitted into evidence. That will be a matter for the Appeal Panel constituted to hear the application for leave to appeal.

Order 31The Appeal Panel orders: (1)The application to issue the summons in the draft form submitted by the appellant on 24 June 2014 is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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: 06 August 2014

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