Georgaros v 7 Eleven Stores Pty Ltd [2022] NSWCATAP 344

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Georgaros v 7 Eleven Stores Pty Ltd [2022] NSWCATAP 344 Hearing dates: 07 October 2022 Date of orders: 07 October 2022 Decision date: 07 October 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: The application to reinstate the appeal is refused. Catchwords: APPEALS – Application to reinstate appeal dismissed for want of appearance. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Wallace v Price [2017] NSWCATAP 151 Texts Cited: None cited Category: Procedural rulings Parties: Nicholas Georgaros (Appellant) 7 Eleven Stores Pty Ltd (Respondent) Representation: Appellant (Self Represented) D Wright (Agent) (Respondent) File Number(s): 2022/00251457 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: 26 October 2021 Before: J Levingston, General Member File Number(s): GEN 21/326673

Ex Tempore REASONS FOR DECISION 1. This is an application to reinstate appeal proceedings pursuant to s 55(2) of the Civil Administrative Tribunal Act 2013 (NSW), which I will call the NCAT Act. For the reasons set out, I will dismiss the application for reinstatement. 2. The appeal was listed for directions on 14 September 2022. Notices went out to the parties, which is not in dispute, giving them the information as to the date of the hearing and of how to dial into it. The appellant failed to appear. The matter was before me on that date. I satisfied myself as to the notice having been sent to the appellant. I gave him an appropriate time to appear. He failed to do so, and I dismissed the proceedings under s 55(1)(c) of the NCAT Act. 3. S 55 of the NCAT Act provides, relevantly: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. 1. From that decision, the appellant brought his application to reinstate the appeal and he did so within time. I need to consider whether the appeal should be reinstated. Notably s 55(2) of the NCAT Act indicates that the Tribunal may reinstate proceedings that have been dismissed under subs (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. 2. The relevant considerations, although they are not exhaustive in terms of whether an appeal should be reinstated, were set out by an Appeal Panel of this Tribunal in Wallace v Price [2017] NSWCATAP 151. The first consideration is whether there has been a reasonable explanation for the appellant's failure to appear. In that regard, the appellant simply says that he had a misunderstanding as to the date when he was to appear. Whilst he also says that he was having difficulties with Internet and telephone services at that time, given his acknowledgement that he simply got the date wrong I do not see how that can have any relevance. 3. I do not accept the fact that the appellant simply mistook the date that he was to appear as a reasonable explanation for a failure to appear and, on that basis, the appeal simply cannot be reinstated on that finding. 4. However, in case I am found to be wrong in that, I will go on to consider the other relevant considerations, had I been satisfied that there had been a reasonable explanation for the failure to appear. 5. Relevant to the considerations as set out in Wallace v Price, which I accept as correct, are the nature of the appeal and the issues raised, the strength of the appeal and its likelihood of success, and any injustice to the opposing party if the appeal is reinstated. 6. It is necessary to briefly say something about the nature of the proceedings at first instance, which was that the appellant sought a refund in the sum of several thousand dollars from the respondent, who operates 7-Eleven stores, in respect of the appellant's purchase of what are described as 'Steam cards'; being what are in effect vouchers for use on a particular platform which are purchased in the form of cards of particular value, then activated and used on that computerised platform. A more fulsome description is contained in the Tribunal's reasons for its decision on 26 October 2021 and do not need to be read in the record here. 7. Here, the appellant undoubtedly bought the cards of the value he has claimed from the respondent at 7-Eleven stores. They are a reseller for the manufacturer or supplier of those cards, which is a company described in the decision at first instance as Incomm Australia and New Zealand Pty Ltd. The Tribunal's reasons set out the nature of the claim under the Fair Trading Act 1987 (NSW). It made relevant findings, including that the appellant was a consumer; that the respondent carried on business of supplying goods including the Steam cards within the meaning of the Fair Trading Act; that the sale was conducted in trade or commerce; and that the appellant purchased the cards and was unable to redeem the benefit of them. It seems that none of those issues were realistically in dispute. 8. The Tribunal went on, in particular at [13] to [15], to indicate that the appellant attempted unsuccessfully to contact Steam Support for assistance and was referred to the respondent to obtain a refund. The respondent acknowledged that it was liable for the sum of $100, for reasons set out, but not the balance of the claim. 9. The Tribunal accepted, at [14], the appellant's sworn evidence that he did not redeem the Steam cards. Importantly, in my view, at [15] the Tribunal noted that the appellant also said, and that the member accepted, that the appellant may have made a mistake or that there was an error in the Steam program during the process of redeeming the amount such it did not appear as a credit in the 'Steam wallet' except on one occasion where he successfully redeemed a Steam card for $100. 10. The Tribunal found that, if this is the explanation, this is not the fault of, nor a breach of the agreement by, the respondent such as to make it liable for the appellant's loss. 11. Critically, that decision was made on 26 October 2021 and no appeal was lodged by the appellant in a sense that actually commenced an appeal until 24 August 2022, being approximately nine months after the time for lodging a notice of appeal had expired. 12. The appellant says in explanation that he took the 'advice' of the member through the reasons and what was apparently discussed at the hearing, that he should pursue Incomm for his losses rather than the respondent. He says that he has been unsuccessful in doing so. 13. In my view, there would be nothing which would lead an Appeal Panel to extend the time for the notice of appeal to be lodged by such a significant period in this matter if I reinstated the appeal. The appellant's challenge does not deal with what the Tribunal found at [15] of its reasons at first instance, i.e., that it may have been his error which caused the cards not to be able to be redeemed. Nor do I think it is likely that the Appeal Panel would accept that the subsequent attempts by the appellant to obtain information or redress from Incomm ought properly to have taken eight months or that was an appropriate period of delay to lodge the appeal. 14. It also seems to me that the appellant simply makes a merits challenge to the Tribunal's findings, such that he would need leave to appeal even if I reinstated the appeal and an extension of time was granted. There does not seem to me to be an issue of principle or of general public importance raised. Nor is there an injustice to the appellant which is reasonably clear. 15. Weighing those issues, even if I had been satisfied the appellant had provided a reasonable explanation for failing to appear on the last occasion, I would still have exercised my discretion not to reinstate the appeal. 16. For those reasons, the application to reinstate the appeal is refused.