Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khalil v LG Electronics Australia Pty Ltd [2022] NSWCATAP 384 Hearing dates: 23 November 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Principal Member A Boxall, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80, Schedule 4 cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), cl 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Natalia Khalil (Appellant) LG Electronics Australia Pty Ltd (Respondent) Representation: Appellant (Self-represented) T Mose (Agent) (Respondent) File Number(s): 2022/00260549 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 4 August 2022 Before: C Marzilli, General Member File Number(s): GEN 22/22374 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 4 August 2022, dismissing the appellant's consumer claim that was lodged on 21 May 2022. 2. The issues in the appeal are: 1. whether there was an error on a question of law, 2. whether the decision was not fair and equitable, 3. whether the decision was against the weight of the evidence, 4. whether there was significant new evidence (being evidence that was not reasonably available at the time of the hearing) now available, and 5. if (2) or (3) or (4) is established, whether to grant leave to appeal. 1. For the reasons set out below, we have decided that there was no error on a question of law, and that the appellant has not shown any basis for granting leave to appeal. Background 1. On 21 February 2019 the appellant purchased a washing machine manufactured by the respondent. On 21 May 2022 she commenced proceedings, seeking a refund of the $960 purchase price, based on the smell she said came from the clothes after they were washed in that machine. A notice dated 23 May 2022 advised the parties the application would be considered on 14 June 2022. 2. On that occasion, directions were made for an inspection of the machine by the respondent's technician by 5 July 2022, for the appellant's documents to be provided by 19 July 2022, and the respondent's documents to be provided by 2 August 2022. 3. A 28 June 2022 notice advised the parties the application would be heard on 4 August 2022. That hearing resulted in the application being dismissed. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. 2. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Hearing 1. First, the documents upon which the parties relied were identified. As a result, in deciding the appeal, we have had regard to: 1. the Notice of Appeal and accompanying documents, 2. the Reply to Appeal and the documents submitted with it, 3. the appellant's documents, received on 18 October 2022, 4. a CD labelled "GEN 22/22374, Mbr Marzilli, 14.6.22", and 5. the respondent's documents, received on 8 November 2022. 1. It was indicated that the respondent had not received a copy of the documents referred to in (3) above. However, after going through the contents of that bundle of documents, it did not appear that the respondent's representative was disadvantaged by that since copies of most if not all those documents were already in the possession of the respondent. 2. Secondly, an opportunity was provided for oral submissions, following the usual sequence of appellant then respondent then appellant in reply so that each party had an opportunity to not only speak in support of their case but also to respond to what was said by the other party. Those submissions are summarised below. Appellant's documents 1. The Notice of Appeal was lodged on 30 August 2022, which was within the 28-day period which applies by reason of cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). 2. What the appellant wrote under the heading "Grounds of Appeal" has been reformatted as follows: The LG Electronics Australia technician report was not considered as it was supposed to be considered by the member. The representative didn't show convincing argument against mine but member took his word. I asked a question at the end but the member said I can't ask that question and rephrased it "is there a chance that one machine for example out of 500 washing machines could produce a smell like mine?" After the member rephrased it to the representative, and the representative said "no", I said "what is the proof"? The member said: "that's the proof, he said no". I object to the way the member was on the representative side without any proof. In the decision the member said I did not get anyone to proof against LG technician report. I couldn't do that as they sent the report Monday night and I opened it Tuesday afternoon and the hearing was on Thursday. They purposely didn't give me time to do any action. The member asked me if I need more time. I said no because this matter has been going on for a very long time and the company LG are doing that on purpose to get me bored and give up. Also, the report didn't show any conclusive reason why the washing machine produced this smell, which they should have if there had been evidence against my claim. When Member Sutherland, on the zoom meeting, asked me to bring someone to look at the machine and prove my claim, I gladly accepted but the representative on that day, Darren, the paralegal person from LG company, straightaway offered to send a technician from the company. Again, I didn't refuse because they were supposed to get their evidence to prove that my claim is faulty, but they didn't because there are a lot of reasons mentioned in the report. Before, when I complained to Fair Trading, their reason was "oversudsing" which has not been mentioned at all in the technician report at all. In the report it said that not using the machine for 4 days or more can cause the smell. We are a family of four with 2 kids that need school uniform washed daily or every second day. It's impossible for us not to use the washing machine for 4 days 1. It was contended that the member should have made an order for the appellant to be given a refund because there was no evidence that her claim was false and that the claim was wrongly dismissed. 2. The decision was said to be not fair and equitable because the respondent failed to provide a "definite reason" for the bad smell and the member made the wrong decision. 3. As to why it was suggested the decision was against the weight of the evidence, the appellant said she tried to get a technician to give evidence but the respondent's representative, despite being given full access to the washing machine, failed to provide "definite reasons" for the bad smell that is coming from the washed clothes. It was said that technician did not ask the appellant to present the clothes to show the smell and did not ask her to wash clothes while he was there, to prove her claim. The appellant suggested "they didn[']t accept for us to bring a technician to prove my claim". 4. On the topic of whether there was significant new evidence available, the appellant suggested she was told the respondent would send a technician: that if she agreed with that technician then she would not need to get her own technician; that if she did not agree with that technician then she could get her own technician to look at the machine. However, due to her not receiving the report until 1 August 2022, she did not have time to respond to that report. 5. Documents submitted with the Notice of Appeal included copies of the directions made on 14 June 2022, the respondent's "Service Report", the 9 April 20220 email from NSW Fair Trading, and the 21 February 2019 tax invoice for the purchase of the washing machine. 6. Additional documents provided by the appellant, received by the Tribunal on 18 October 2022, included an undated letter to the appellant from NSW Fair Trading, together with a typed transcript containing extracts from the 14 June 2022 hearing, a two-page brochure for the model purchased by the appellant, a page containing a Google search, a page containing four colour photos, a troubleshooting page with headings of symptoms, reason and solution, and a page headed "Stainless Steel Inner Tub". 7. The documents submitted by the respondent are summarised below. Reply to Appeal 1. The respondent's Reply to Appeal contended that the appellant had not established the alleged fault and opposed any grant of leave to appeal. Respondent's documents 1. The respondent provided written submissions, together with a copy of the documents it submitted to the Tribunal on 8 June 2022, and a copy of the Service Report dated 28 June 2022. 2. Those written submissions contended that the appellant has not demonstrated any error in what occurred on either 14 June 2022 or 4 August 2022, and that the appellant has failed to prove her case that her washing machine is defective. Appellant's oral submissions 1. The appellant reminded the Tribunal that the first response to her complaint was that there was what was called "oversudsing" which resulted in a build-up of mould. She recounted what occurred on 14 June 2022 which resulted in the washing machine being inspected and said she did not receive the resulting report until two or three days prior to the hearing by which time she did not have time to obtain her own report. 2. It was also said that her washing machine, which should have a life expectancy of 10 to 15 years, was less than three years old but was already rusting. The appellant suggested her washing machine was not of acceptable quality and was not fit for its intended purpose. 3. The appellant's case was expressed in terms of the respondent not making any clear accusation that the problem with her washing machine was her fault and that she wanted to give the respondent access to her machine so they would have a chance to show that her claim is false. Respondent's oral submissions 1. It was submitted that there was no evidence provided by the appellant, notably no physical evidence as to why there was an odour or smell. Further, that the machine did not come from the factory with any smell and that, as no fault was found, the respondent was not obliged to provide any remedy. The respondent's case was that its conduct was not unreasonable in that it arranged for an inspection at no cost to the appellant and that the appellant was given an opportunity to obtain her own report. 2. Mr Mose clarified that the person who inspected the appellant's washing machine was an authorised third-party technician, not an employee of the respondent. He indicated that he did not attend the 14 June 2022 hearing, but he did attend the hearing on 4 August 2022 and suggested there was no error in the decision now challenged, noting that the directions made on 14 June 2022 provided an opportunity for evidence to be provided. Oral submissions in reply 1. The appellant queried the conduct of the technician as he did not ask her to either wash clothes or show clothes that had been washed. She said that the technician saying there was no fault in the machine did not mean the problem was her fault and went on to recollect the member saying, on 14 June 2022, that if the technician proved a fault, then she would not need to get her own report. The appellant said she forgot she could get her own report: "I didn't get my own report because I completely forgot about what the Tribunal member said …" Consideration 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 2. The role of the Appeal Panel is to determine whether there is any error in what occurred at first instance, sometimes referred to as the primary decision. 3. Listening to the recording of the hearing on 14 June 2022 does not reveal any error. Indeed, what was said by the respondent's representative on that occasion served to indicate to her: 1. that she bore the onus of proof, with the result that it was not for the respondent to disprove her allegations, 2. the need for a report from an expert, 3. what would be the respondent's case, namely that she is using too much detergent which then overflows and enters inside the washing machine, resulting in mould which causes a smell, and 4. that the respondent would send an expert to inspect the machine by 5 July 2022 so that, if a fault was found, that would remove the need for the appellant to obtain a report from an expert, otherwise the appellant would then have an opportunity to obtain her own report. 1. The respondent having already prepared documents, being those received by the Tribunal on 8 June 2022, with the respondent's technician to inspect by 5 July 2022, an opportunity was provided for the appellant to obtain evidence and submit her documents by 19 July 2022, after which the respondent would have a chance to respond by 2 August 2022. 2. It was not suggested the technician, who appears to have inspected the machine on 28 June 2022, did not indicate to the appellant what he found or failed to find on that occasion such that the report, when provided came as a surprise. If she was surprised by the report from the respondent's technician, she could have taken up the offer of an adjournment of the hearing on 4 August 2022 but she did not do so, with the result that the hearing proceeded on that occasion. 3. The appellant, who bore the onus of proof, had an opportunity to submit the evidence upon which she relied prior to the hearing on 4 August 2022. No recording or transcript of the 4 August 2022 hearing was provided. From the published reasons, there is nothing to suggest an error on a question of law, or that the decision was not fair and equitable, or that the decision was against the weight of the evidence. 4. No doubt, the appellant would now wish to obtain evidence in the form of an expert report in support of her case. However, that is not fresh evidence in that the appellant had the opportunity to obtain such a report prior to the hearing. 5. It would appear the appellant is of the view that, having raised the problem she has had with the washing machine, the respondent has failed to prove that problem was her fault. While it is understandable that a consumer may think that way, that is not how claims are assessed by a court or tribunal. The fact that the appellant's claim was dismissed is the result of the fact that her evidence of the problem upon which her application was based was not sufficient to satisfy the onus of proof which she bears. 6. It may be that the outcome would have been different if the appellant had obtained a report so that her lay evidence was supported by expert evidence. Listening to the recording of the entire hearing on 14 July 2022, and not just reading the partial transcript, reveals that Member Sutherland provided a clear explanation, raised the need for expert evidence, and tried to save the appellant the time and cost of obtaining that expert evidence. We are unable to find any error in what was said and done on 14 July 2022. 7. Likewise, there does not appear to be any error in what was said and done by Member Marzilli on 4 August 2022. Importantly, it is noted that the published reasons recorded: "The Applicant was offered an adjournment by the Tribunal so that she could consider the material provided to the Tribunal today and to the Applicant on 1 August 2022. The Applicant refused that offer and so the hearing continued." Conclusion 1. No error on a question of law has been shown. No basis for leave to appeal has been established. 2. For these reasons set out above, the orders that will be made are as follows: 1. Leave to 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: 09 December 2022