Zioukin v BE Commerce Pty Ltd

NCAT Appeal Panel|2023-04-11

REASONS FOR DECISION

In an application filed in the Tribunal on 30 June 2022, Mr Zioukin sought a refund of $472.90 from Xtreme Communications Pty Ltd for a mobile phone he had purchased from "Buymobile" on 1 July 2019.
At a directions hearing on 25 July 2022 the Tribunal made orders enabling Mr Zioukin to change the name of the respondent. Mr Zioukin wrote to the registry on 15 August 2022 asking to amend the name of the respondent to BE Commerce Pty Ltd and to discontinue against Xtreme Communications Pty Ltd.
On 22 August 2022 the name of the respondent was amended by the Tribunal to "BE Commerce Pty Ltd formerly trading as Buymobile".
BE Commerce Pty Ltd denies it owned the business name Buymobile at the relevant time and denied it had sold the mobile phone to Mr Zioukin. There was thus an issue before the Tribunal as to the whether the respondent had been correctly identified.
Mr Zioukin's application was heard on 2 November 2022. The Tribunal dismissed Mr Zioukin's application.
In reasons published on 3 November 2022, the Tribunal held it could not determine the identity of the seller on the evidence and was not satisfied that Mr Zioukin had shown that BE Commerce Pty Ltd had sold the phone to him.
Mr Zioukin initially claimed that the phone had a defect which should have been repaired under warranty and that it was not as described in its user guide. The phone had not been assessed by an expert to determine whether it had a fault or was not fit for purpose.
The Tribunal held that Mr Zioukin had not proved his case on the balance of probabilities.

Adjournment application

At the commencement of the hearing of these appeal proceedings, Mr Zioukin applied to have the hearing adjourned. The application was opposed.
Mr Zioukin filed a statutory declaration in support of the application and relied on an affidavit he had sworn in unrelated proceedings in the Supreme Court of NSW. He also made oral submissions in support of his application. He said he had not been able to prepare his case because: 1. He has medical issues which cause him chronic pain which affects his ability to function and concentrate. There are various medical reports in evidence recommending that Mr Zioukin be given extra time to prepare his evidence and have his cases scheduled for hearing in the afternoon. 2. He has been busy working on his other legal cases. These include one which was listed for hearing in the NSW Court of Appeal in March 2023, in which he was unsuccessful, and he is now working on his application for leave to appeal to the High Court. He also had a hearing listed in the District Court on 12 April 2023. 3. He is engaged in separate legal proceedings in relation to his tenancy. He is concerned that he will be evicted.
The Tribunal's power to adjourn proceedings is conferred by s 51 of the NCAT Act. Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: Armee v Brealey [2017] NSWCATAP 141 at [121].
The NCAT Act requires the Tribunal to give effect to the guiding principle which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1). The Tribunal is required to exercise its powers to give effect to this principle: NCAT Act, s 36(2). The parties are under a duty to cooperate to give effect to this principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal": NCAT Act, s 36(3).
In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": NCAT Act, s 36(5).
While the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice: NCAT Act, s 38(2).
The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: NCAT Act, s 38(4).
The Tribunal is also to take such measures as are reasonably practicable to ensure that the parties to the proceedings: 1. understand the nature of the proceedings: NCAT Act, s 38(5)(a); and 2. have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c).
These requirements make it clear that in giving effect to the guiding principle the Tribunal is to have regard to the interests of both parties as well as issues of proportionality which include issues of cost and the impact upon the Tribunal in meeting its obligations in respect of other applications which it is required to determine.
Given the similarity between what ss 36 and 38 of the NCAT Act require of the Tribunal, and the legislation governing most Courts throughout Australia in that regard, it is apposite to consider some principles set out by the courts in respect of applications of this nature.
The High Court has stated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27; Chief Justice French, Gummow, Hayne, Crennan, Kiefel and Bell JJ agreeing at [116]: 5. … [T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system… 30. … Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The Court of Appeal has stated that it does not readily accede to applications to vacate hearing dates unless the proceedings have been settled or abandoned: Bovaird v Frost [2013] NSWCA 91 at [1].
Where a "matter was fixed for hearing some considerable time ago and its presence in the List has prevented other matters being listed for hearing, the Court will not permit its List to be disrupted in this way without good reason.": AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [6].
We also note the recent comments of the Court of Appeal in Zioukin v Lang [2023] NSWCA 42 regarding Mr Zioukin in different proceedings: 12. We proceed on the basis that Mr Zioukin suffers from a variety of physical and mental disabilities. He is conscious of what he maintains are his entitlements under the Disability Discrimination Act 1992 (Cth). The difficulty with the notice of motion is that (a) Mr Zioukin has known for three months that, in the event that he filed a summons seeking leave to appeal, it would be listed for hearing on 13 March 2023 and (b) there is still nothing clearly indicating the nature of the extra grounds, let alone the submissions on which he seeks to rely. There are limits to the extent which accommodation may be given to ameliorate Mr Zioukin's disabilities, and the Court must also be conscious of the burdens upon the parties against whom he has commenced proceedings. 13. We are also conscious that, as was pointed out to Mr Zioukin during the hearing, he has repeatedly sought adjournments and vacations of hearing dates in proceedings commenced by him. The primary judge observed that Mr Zioukin had applied for adjournments a fortnight earlier, and in the District Court a couple of months earlier, on the basis of his health, and added at [22]: "The consistent seeking of adjournment of proceedings for health problems imposes a significant burden on the individual respondent, who has been a party to these proceedings involving her former tenant, in NCAT, and in this Court.""
In deciding whether to exercise the discretion to adjourn the proceedings, we took the following into account: 1. Mr Zioukin's disability and its effect on his ability to prepare his case for hearing and attend at the hearing were considered when the timetable for this appeal was finalised. At a directions hearing on 18 January 2023, this appeal was listed for hearing on 9 March 2023 with an order made for Mr Zioukin to lodge and serve his evidence by 15 February 2023. Mr Zioukin then reminded the Tribunal about his disability. The orders were amended, so that the hearing date was changed to 11 April 2023 at 2.15 pm and the time for Mr Zioukin to serve his evidence was extended to 8 March 2023. 2. Whilst, prior to today, Mr Zioukin had lodged nothing in support of his appeal in accordance with the Appeal Panel's directions, he did so in the hours prior to the hearing. The respondent made no claim of prejudice if we allowed Mr Zioukin to rely on the material before the Tribunal at first instance, which the respondent had seen. 3. There is no evidence of Mr Zioukin having taken any steps since the lodging of his appeal to find the correct respondent. Nor has he given any evidence of the steps he proposes to take to obtain that information. 4. The proceedings in the Court of Appeal were heard and finalised after the amended date for Mr Zioukin to lodge and serve his primary material, which was 8 March 2023. Steps taken by Mr Zioukin to appeal from that decision, then, do not advance his reasons for non-compliance with the directions. 5. We do not consider that Mr Zioukin's submissions about his concern at possibly being evicted advance his reasons for non-compliance with the directions. Mr Zioukin was still living at those premises on 8 March 2023, he had been allowed to stay on after 8 March 2023 and he still lives there. 6. The amount claimed by Mr Zioukin is modest, being $472.90.
The dictates of procedural fairness require that Mr Zioukin be given a reasonable opportunity to present his case. However whilst procedural fairness requires that a party be given 'a reasonable opportunity to present his case,' we are not required to ensure 'that a party takes the best advantage of the opportunity to which he is entitled': Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
At the hearing date it had been 18 weeks since Mr Zioukin lodged his appeal and 11 weeks since directions were first made for him to lodge and serve his material. Nothing probative has been lodged, in the nature of submissions outlining the Tribunal's alleged errors or by way of new evidence identifying Be Commerce Pty Ltd as having sold him the telephone, despite Mr Zioukin managing to collate and lodge over 50 pages of material in support of his adjournment application.
The prejudice to BE Commerce Pty Ltd in having the matter adjourned in those circumstances, and the, prima facie, unnecessary impost on public resources, do not warrant an adjournment.

The Appeal

Mr Zioukin says that the Tribunal made the following errors, which could as appropriate be reframed as questions of law: 1. Acting contrary to the principles of natural justice and failing to act in accordance with principles of procedural fairness; 2. Failing to give an adequate explanation of its reasoning process; and 3. Making factual findings contrary to the evidence.
As we have already said, Mr Zioukin has not sought to file any evidence in the appeal to address the finding of the Tribunal which was fatal to his case and clearly explained in the Tribunal's reasons - that he had not proven he bought the phone from BE Commerce Pty Ltd or that any other relevant legal relationship between them had been established.
Further, Mr Zioukin did not submit that there was evidence before the Tribunal which would have supported a finding that he had bought the phone from BE Commerce Pty Ltd and which was not considered, misconstrued or overlooked by the Tribunal.
In these circumstances we do not consider it necessary to consider in detail the other submissions made by Mr Zioukin. Their success is all predicated on BE Commerce Pty Ltd being the seller of the phone - in particular his initial claim for breach of warranty which he withdrew in the proceedings at first instance to solely pursue a claim that the phone did not comply with the description in the user guide.
We are not persuaded that the Tribunal made any of the errors broadly and imprecisely pleaded in Mr Zioukin's Notice of Appeal but even if such errors had occurred there would be no basis to uphold the appeal because no practical injustice can be demonstrated without evidence BE Commerce Pty Ltd was the proper respondent at first instance.
The Orders we make are: 1. The application to adjourn the hearing of the appeal is refused. 2. The appeal is dismissed. 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: 19 April 2023

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