Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295

Supreme Court of Victoria|2002-08-02|Before: Byrne J

CONSUMER protection - Small Claims - application for leave to appeal - application out of time - time extended - whether arguable question of law.

The Small Claims Tribunal was established in 1973 to provide a quick, cheap, informal and effective means of resolving disputes concerning modest sums. The claims, the subject of the present applications, arise out of disputes which have existed between the applicant, Julene Marguerite Winn, the editor of a publication called Inscape, and Roderick James Goodwin, who agreed to perform certain pre-publication work for this publication, and Blueprint Instant Printing Pty Ltd ("Blueprint"), the printer. The project required the publication of 300 copies of Inscape 7 by the end of August 2000. In fact Blueprint delivered only 150 copies to Ms Winn on 1 September 2000 of which she rejected about 70 for alleged defects. The balance of about 220 copies was later delivered but these included the 70 previously rejected copies and 10 more copies which were said to be unsaleable. There were some discussions between Ms Winn and Blueprint as a result of which on 30 November 2000 she paid $3,655. Mr Goodwin's account for $4,264 was, however, not paid. These events have engendered four claims before the Victorian Civil and Administrative Tribunal:

(1) Claim No. C4446/2000, Winn v Goodwin, filed in December 2000. In this claim brought under the Fair Trading Act 1999 Ms Winn sought $5,000 damages.

(2) Claim No. C44/2001, Goodwin v Winn filed on 8 January 2001. In this claim Mr Goodwin sought $5,000 damages including $4,264 as the agreed costs of his pre-publication work.

(3) Claim No. C151/2001, Winn v Blueprint, filed on 8 January 2001. In this claim Ms Winn sought $6,887.60 damages under the Fair Trading Act and the return of certain artwork retained by Blueprint.

(4) Claim No. C1740/2001, Blueprint v Winn filed on 3 May 2001. In this claim Blueprint sought $22,223.10 as the cost of the printing work.

The validity of the third and fourth claims involving Blueprint is complicated by the fact that in November 2000 these parties apparently achieved some settlement of the disputed printing account. Ms Winn paid and Christopher John Terry, on behalf of Blueprint, accepted the sum of $3,655.

The claims were the subject of mediation in January, February, August and September 2001.

Eventually, the claims came on for hearing on 13 September 2001 before the Tribunal constituted by Mr Peter Coldbeck, a non-presidential member. The Tribunal heard the claims and made the following determinations:

(1) Claim No. C4446/2000 - Ms Winn's claim was dismissed. She was ordered to pay to Mr Goodwin $180 costs and to Blueprint $195 costs. These orders are the subject of Proceeding No. 4217 of 2002 in this Court.

(2) Claim No. C44/2001 - Ms Winn was ordered to pay to Mr Goodwin the sum of $4,264. This order is the subject of Proceeding No. 4216 of 2002 in this Court.

(3) Claim No. C151/2001 - Blueprint was ordered to return to Ms Winn copies of earlier editions of Inscape, certain proofs and a catalogue. Otherwise, her claim was dismissed. This order is the subject of Proceeding No. 4215 of 2002 in this Court.

(4) Claim No. C1740/2001 - Blueprint's claim was dismissed. This order is the subject of no complaint in this Court.

In response to Ms Winn's request, the Tribunal on 11 December 2001 provided written reasons for its determinations dated 6 December 2001. Pursuant to s. 148, the time for the making of an application to this Court for leave to appeal expired on or about 7 January 2002 at the latest. In fact she sought to file her applications on 24 January 2002. Accordingly, they were out of time.

The first application in each case, accordingly, is for an extension of time to seek leave to appeal. The evidence showed that Ms Winn consulted her solicitor before Christmas 2001 about appealing and that he advised her that time did not run in the court vacation. Given his instructions as to the date of the delivery of the Tribunal's reasons she was advised that she had until 24 January 2002 to apply for leave. She put her solicitor in funds on 23 January 2002 and the documents were filed on the following day.

It is accepted that this legal advice was erroneous. Nevertheless, counsel for the respondents urged me to refuse to extend time because her applications were not likely to succeed and because his clients would otherwise incur the costs of opposing the appeals and would be prejudiced by losing the benefit of the orders of 13 September 2001. I reject these submissions. This is not a case where the litigant has been dilatory or has neglected her own interests. If her appeals are not good this will be a reason for refusing leave. Nor do I see it as a matter of prejudice that the respondents should hold an order if it should otherwise have been set aside on appeal.

I turn now to the applicant's leave to appeal applications. The suggested areas of law upon which the appeals depend are conveniently set out in the draft notices of appeal which are in similar terms[1].

"4. The questions of law raised by the Appellant are: (a) Did the Tribunal deny natural justice or procedural fairness to the Appellant insofar as the Tribunal: (i) did not inform the Appellant of her right to cross-examine Mr Chris Terry or Mr Roderick Goodwin?; (ii) did not allow the Appellant any opportunity to cross-examine Mr Terry or Mr Goodwin?; (iii) did not allow the Appellant to give evidence with respect to the issue of sponsorship?; (iv) did not allow the Appellant a reasonable opportunity to give or otherwise call evidence or make submissions to the Tribunal with respect to the evidence of Ms Colley?; (v) did not allow the Appellant an opportunity to make final submissions to the Tribunal?; (vi) found that the Appellant was a disorganised and confused person as a result of an inspection of the Tribunal file but failed to give the Appellant an opportunity to give or otherwise call evidence or make submissions to the Tribunal on that matter?; (vii) found that there is a `usual practice' between client and printer but failed to give the Appellant an opportunity to give or otherwise call evidence or make submissions to the Tribunal on that matter?; (viii) did not allow the Appellant a reasonable opportunity to put relevant documents in evidence before the Tribunal and or failed to consider relevant documents?; (ix) did not allow the Appellant an opportunity to have and view the documents retained by Blueprint Instant Printing Pty Ltd (`BPIP') prior to the hearing and determination of the matters in Tribunal proceeding number C4446/2000 (Ms Winn v Mr Goodwin) and C44/2001 (Mr Goodwin v Ms Winn), being the documents that were ultimately the subject of the orders made in the Appellant's favour in Tribunal proceeding number C151/2001 (Ms Winn v BPIP) (`the materials')?; (x) determined that the Appellant ought to pay to Mr Goodwin and BPIP the costs reserved by the Tribunal on 10 August 2001 but failed to give the Appellant an opportunity to make submissions to it on that matter?; (b) Was it open to the Tribunal on the evidence before it to find that: (i) the Appellant's position was in no way compromised as a result of the materials not being returned to the Appellant prior to the hearing?; (ii) the Appellant had been deliberately untruthful?; (iii) the Appellant knew that Mr Goodwin continued to be involved in the project after 21 August 2000?; (iv) the Appellant acknowledged that she was suffering from `indifferent health' at the relevant time?; (c) Did the Tribunal err in law in taking into account matters that occurred at mediations? (d) Did the Tribunal err in law in failing to provide any reason at all for its decision that the Appellant ought to pay to Mr Goodwin and BPIP the costs reserved by the Tribunal on 10 August 2001?"

The principal complaint of Ms Winn is that she was not accorded natural justice in many respects as set out in sub-paragraphs (a)(i)-(v) and (viii) and (ix). It was accepted that the Tribunal must act fairly and that it was bound by the rules of natural justice[2]. But this does not require that its procedures be that of a formal court. Indeed, the Victorian Civil Administrative Tribunal Act 1998 ("the Act") makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate[3]. This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court. This said, s. 102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions. This obligation is, of course, constrained by s. 102(2) and by the ordinary requirements of relevance.

I have read the transcript of the Tribunal hearing in this case. It is clear that the parties had but a rudimentary understanding of the requirement that evidence be led in a formal way and that it be relevant. This meant that there was much discussion, interjection and argumentative interposition of assertion and evidence. In this context the difficult task of the Tribunal is to maintain some control and to restrain the enthusiasm of the participants who might otherwise have placed before him all manner of unhelpful material. As a measure of this difficulty, I observe that, even with the restraining influence of competent legal practitioners, a good deal of the material before me was irrelevant to the applications.

It is said that the Tribunal did not inform Ms Winn of her right to cross-examine the witnesses who gave evidence against her. There is evidence that the Tribunal provides a guide for litigants, but none that she received or read it. I am not satisfied, however, that the material discloses an arguable point of law that Ms Winn was ignorant of her right to question these witnesses. There is no evidence that she was denied the right to explore in cross-examination any matter which might have affected the result. I am, likewise, not satisfied that there is an arguable point of law in her complaint that she was denied the reasonable opportunity of giving relevant evidence as to sponsorship or as to the evidence of Ms Colley. Likewise, there is nothing in her complaint that she was denied the opportunity to present final submissions. Her submissions appear to have been made throughout the hearing so that the Tribunal could not have been in any doubt as to what she was contending.

Likewise, there is nothing in the complaints made in sub-paragraphs (viii) and (ix). The production of these documents was not necessary for the Tribunal to achieve a just determination of the issues before it.

The remaining sub-paragraphs of paragraph (a), namely sub-paragraphs (vi) and (vii), and part (b), all raise findings of fact which have been dressed up as questions of law. It was open in each case to the Tribunal on the material before it to make the finding of fact which it did.

Paragraph (c) alleges that the Tribunal had regard to matters which occurred at a mediation. This is a reference to the observation of the Tribunal appearing at page 91 of the transcript of 13 September 2001 that in June 2001 the dispute between Ms Winn and Blueprint was capable of being compromised by her paying the sum of $2,750. This is obviously a reference, not to what was said at the mediation, but to the terms of a consent order of 13 June 2001 on the Tribunal file. The order was conditional upon the outcome of a forthcoming review hearing and in fact was set aside in August 2001. Read in the light of this material, which was not subject to any privilege, the comment of the Tribunal was understandable and does not amount to or give rise to an error of law.

This leaves but one matter, that in paragraph (a)(x) in proceeding No. 4217 of 2002, only. The complaint is that the Tribunal on 13 September 2001 in claim C4446/2000 ordered Ms Winn to pay the costs of the review, being $180 to Mr Goodwin and $195 to Blueprint. The error of law alleged is that the Tribunal failed to give reasons for this order and failed to give to Ms Winn the opportunity to make submissions on this matter. I make the following observations about this order and the grounds relied upon:

(1) The order ought not to have been made in favour of Blueprint in a proceeding to which it was not a party.

(2) Pursuant to Schedule 1 to the Act, cl. 85(1), it was open to the Tribunal to order costs in a review of a determination under s. 120 but not otherwise.

(3) Upon a review of the consent order of 13 June 2001, the Tribunal on 10 August 2001 set aside that order and reserved the costs of the review. Notwithstanding the terms of the order for costs of 13 September 2001, the costs here in question appear to have been not the costs of the review; they were the costs of the respondents of attending the Tribunal on 13 June 2001 when the consent order was made. Accordingly, they ought not to have been ordered in any event, having regard to Schedule 1 to the Act, cl. 85.

(5) It does not appear that the question of these costs was raised at the hearing on 13 September 2001 so that Ms Winn is correct when she says she was not able to put argument before the Tribunal.

(6) As to the question of the non-provision of reasons, Schedule 1 to the Act, cl. 87 makes it clear that in this case Ms Winn was not entitled to reasons.

It seems to me that these orders for costs were erroneous, albeit not in substance for the reasons appearing in the proposed notice of appeal. The sums in question, however, are trifling. I will, therefore, invite the parties to consider whether the appropriate course is for me to dispose, not only of the leave to appeal application on this point, but also the appeal itself by setting aside the costs order.

I will hear counsel on this matter and also on any questions of costs of the application.

[1] Sub-paragraphs 4(a)(x) and (d) appear only in the Draft Notice of Appeal in Proceeding No. 4217 of 2002.

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Judgment (24 paragraphs)

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