Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tran v Brown [2022] NSWCATAP 343 Hearing dates: 11 October 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member M Gracie, Senior Member Decision: (1) The date in order 3 of the Tribunal in file MV22/19493 is varied to 21 October 2022. (2) Leave to appeal is refused. (3) The appeal is dismissed. Catchwords: APPEALS – Leave to appeal – principles governing – procedural fairness – relevance or transcript to proof conduct of hearing unfair. Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Stead v State Government Insurance Commission [1986] HCA 54 Texts Cited: None cited Category: Principal judgment Parties: Thuan Tran (Appellant) Peter Brown (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2022/00237071 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 July 2022 Before: J Levingston, General Member File Number(s): MV 22/19493 Ex Tempore REASONS FOR DECISION 1. The appellant motor dealer challenges a decision of the Consumer and Commercial Division of this Tribunal which, in effect, ordered him to accept the rejection of a vehicle sold to the respondent consumer, refund the purchase price, pay consequent damages and collect the vehicle from the respondent consumer at the appellant's cost. 2. The appeal has been lodged in time. 3. Quite simply, the appellant says the Tribunal's decision was infected by procedural unfairness in that, in a hearing conducted virtually by telephone, he could not be heard as there were connection issues and that the points he wished to make in response to the application were not considered as a consequence. The appellant also seeks leave to appeal based on the same issues. 4. In preparation for the appeal a stay was granted over the Tribunal's decision. 5. To succeed in an appeal from the Consumer and Commercial Division the appellant must demonstrate either an error on a question of law, which except for an appeal from an interlocutory decision may be argued as of right, or that permission, that is leave to appeal, should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2) (NCAT Act). 6. The Appeal Panel made directions for the parties to lodge and serve the material they relied upon which, critically for the appellant, included the sound recording and transcript of the hearing at first instance if the appellant relied on what occurred at that hearing as part of the appeal. Despite that direction, the appellant has failed to lodge the sound recording or transcript. He also failed to lodge anything probative to indicate that the Tribunal's decision was made in error. 7. In the absence of the sound recording being provided as directed, we cannot be satisfied that the concerns raised by the appellant as to procedural fairness are made out. In any event, we note that procedural fairness is concerned with avoiding practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6 per Gleeson CJ at [37]. 8. The appellant's material makes it clear that what he felt the Tribunal overlooked, because he was unable to clearly give his evidence, was the fact that the vehicle was sold without a statutory warranty and that it was used for approximately 5,000 kilometres and five months before the defects which led to the rejection of the vehicle became apparent. However, it is clear from a fair reading of the Tribunal's reasons that those issues were specifically adverted to and considered by the Tribunal, meaning that there could be no practical injustice demonstrated even if some connection issues with the telephone had been established as having occurred. In other words, there was no possibility any difficulty with the phone connection, had it not occurred, could have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54. 9. For those reasons the appeal cannot succeed on a question of law. 10. The appellant also seeks leave to appeal but relies on the same issues raised in respect of the alleged procedural unfairness. For the reasons above, there is no indication he may have suffered a substantial miscarriage of justice: NCAT Act, Sch 4 cl 12. There is also no suggestion, and we are unable to discern, that there has been any issue of principle or of general public importance raised. Nor, for the reasons set out earlier, could it be said that the appellant has demonstrated an injustice that is reasonably clear and rising above the merely arguable: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [28]. 11. The Tribunal adopted an orthodox reasoning process, applying the relevant statutory provisions in the Australian Consumer Law, New South Wales, by virtue of the application of the Fair Trading Act 1987 (NSW). Its findings were apparently open on the evidence before it. 12. Finally, we note that for the first time at the hearing before us the appellant raised a concern that the vehicle was subject to finance. We infer that was raised to indicate the decision was not fair and equitable. If it were the case that the vehicle was used as security for a loan, meaning the respondent could not transfer title back to the appellant without the loan being discharged, the orders of the Tribunal may indeed have caused an injustice as there was no mechanism to ensure the loan was discharged from the amount the appellant was ordered to pay. 13. For that reason, we allowed the respondent to adduce evidence that his loan was obtained from a charitable organisation which loans money to Centrelink recipients at no interest. We also allowed the appellant an opportunity to conduct a Personal Property Security Register search to confirm there was no registered security interest against the vehicle. There was not. This issue did not warrant a grant of leave. 14. Leave to appeal is therefore refused and the appeal is dismissed. As a consequence, the stay granted on 26 August 2022 ceases to have effect on its own terms and the decision can be enforced. We will, however, extend time for the appellant to collect the vehicle from the respondent under order 3 made at first instance until 21 October 2022. 15. Our orders will therefore be: 1. The date in order 3 of the Tribunal in file MV22/19493 is varied to 21 October 2022. 2. Leave to appeal is refused. 3. 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: 02 November 2022