Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hargans v SNB Plus 3 Pty Ltd [2023] NSWCATAP 157 Hearing dates: 13 April 2023 Date of orders: 14 June 2023 Decision date: 14 June 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President JS Currie, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL- costs at first instance- no special circumstances-experts report- submissions raised on appeal not raised at first instance. Legislation Cited: Civil & Administrative Tribunal Act, 2013 (NSW) Civil & Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: House v The King [1936] 55 CLR 500 Jackson v New South Wales Land & Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Joel Stanley Hargans (Appellant) SNB Plus 3 Pty Ltd ATF Martin Family Trust trading as Macleay Trailers & Steel Fabrications (Respondent) Representation: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2023/00033335 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 24 November 2022 Before: S Hausfeld, General Member File Number(s): MV 22/21493 REASONS FOR DECISION Introduction 1. The Appellant lodged an application in the Consumer & Commercial Division of the Tribunal against the Respondent seeking refund of the price paid for a trailer plus the costs of obtaining an expert's report. In the proceedings the Tribunal was exercising the jurisdiction granted to it under the Fair Trading Act 1987 (NSW) by which the Tribunal is given jurisdiction to resolve consumer claims. 2. The proceedings were heard and determined on 24 November 2022 and the result was that the applicant (now the Appellant) obtained an order for refund of money paid to the Respondent for the trailer less an allowance for damage incurred by the Appellant to the trailer. Orders were also made for the trailer to be returned to the possession of the Respondent. 3. The orders were complied with by the parties in January of this year and on 1 February 2023 the Appellant lodged a Notice of Appeal. 4. Two issues emerge from the Notice of Appeal. The first is that the Appellant submits that the amount ordered to be refunded was reduced by $800 when the appropriate reduction should have been only $110. The second is that the Appellant submits that the Tribunal erred in refusing to reimburse the Appellant for the cost of obtaining an expert's report. That was the report of Phil Scott Automotive Consulting (the Scott report) and the amount charged by that firm was $1,996.50. 5. Accordingly, the Appellant seeks from the Appeal Panel an order that a further amount be paid to him by the Respondent calculated by reducing the amount of $800 to $110 and by ordering that the Respondent also pay him the amount charged by Phil Scott Automotive Consulting. The Decision 1. The decision under appeal (which we will refer to as the Decision) may be summarised with respect to the two issues raised by the Appellant in the appeal as follows: 1. From [16] the Tribunal recorded that it was satisfied with the qualifications of Philip Scott and with his conclusions about the trailer which the Appellant had purchased from the Respondent. At [18] the Tribunal found that the trailer was not fit for purpose and was not as contracted for. The Tribunal found that the full price should be refunded subject to "minor damage to one mudguard which the Appellant said was caused by hitting another trailer in his yard". The Tribunal found that "neither party was believable as to the cost of repairing the slightly dented mudguard with a significant rusty patch where paint had been removed. Neither party had a quote for the repair". 2. The Respondent contended that the cost of repair would be $2,500 and the Appellant contended that the cost was only $150. The Tribunal found that the parties had not provided any corroborating evidence for the respective values and the Tribunal determined that it would allow $800 for such damage. Accordingly, the amount ordered to be refunded was $9,680 (the contract price being $10,480). 3. In respect of the costs of the Scott report, the Tribunal said that the question of whether costs would be ordered falls for consideration under s 60 of the Civil & Administrative Tribunal Act, 2013 (NSW) (the NCAT Act). The Decision records that the Tribunal was not satisfied that there were special circumstances warranting a costs order. The Decision stated that the Tribunal had considered each of the matters listed in s 60(3)(a)‑(f). The Tribunal further noted that the Appellant had not addressed any matters in that section. The Tribunal found that the Appellant had not established "this part of his claim". The Decision also recorded that additional oral reasons were given at the hearing. 4. It is also relevant to record that the Tribunal gave either party the right to relist the matter "if there are irresolvable problems in implementing the above orders". Post-hearing Proceedings 1. In December 2022 the Respondent sought to have the proceedings relisted. It appears that that was occasioned by difficulties between the parties in complying with the order for repayment and delivery of the trailer to the Respondent. However, those difficulties were resolved on or about 12 January 2023 and on 20 January 2023 the Tribunal recorded that the application for the relisting made by the Respondent was withdrawn. Notice of Appeal 1. The Appellant lodged a Notice of Appeal with supporting documents on 1 February 2023. The grounds of appeal may be summarised as follows: 1. The Appellant contended that his evidence of having repaired and painted the trailer was not considered and that the Appeal Panel should now consider a quotation for such repair. That quotation is fresh evidence constituted by a statement from Geoff Jones dated 23 January 2023, quoting a cost of $110 to repair and paint the relevant parts of the trailer. 2. The Appellant contended that s 60(3)(c) is relevant and should have been considered. This is a reference to s 60 of the NCAT Act, the terms of which are as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following-- (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may-- (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section-- "costs" includes-- (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The Notice of Appeal contended that the Decision was not fair and equitable, was against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing. 2. The Notice of Appeal sought an extension of time for lodgment of the appeal and set out the reasons for the late lodgment. We will revert with respect to that issue later. Documents lodged in support of or in opposition to the appeal 1. On 22 February 2023 the Tribunal made directions with respect to the conduct of the appeal. The Appellant was ordered to lodge material in support of the appeal by 1 March. That included the requirement that if oral reasons were given and/or what happened at the hearing, at first instance, is being relied upon by the Appellant in the appeal a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing should be supplied. A similar order was made with respect to material that the Respondent wished to file in opposition to the appeal and the deadline for that material was 27 March 2023. 2. The Appellant did not file any submissions in accordance with those directions. However, attached to the Notice of Appeal were submissions addressing the Appellant's points of appeal. Neither party filed a transcript of the hearing on 24 November 2023. 3. The Respondent did not file a Reply to Appeal but did file material in opposition to the appeal which was received by the Tribunal on 3 April 2023. 4. Appellant's Contentions 5. The Appellant's contentions contained in the documents attached to the Notice of Appeal and presented orally at the hearing of the appeal are summarised in the following paragraphs. 6. The Appellant contended that the Tribunal did not allow consideration to be given to evidence that he had supplied to the effect that he had undertaken some repairs to the trailer. At the hearing, the Appellant specifically referred to a photograph (on page 41 of 63 pages attached to the Notice of Appeal)) of the trailer. The Appellant contended that had such evidence been considered it would have caused the Tribunal to reduce the amount of the reduction. 7. The Appellant also relied upon the statement earlier referred to of Geoff Jones. Although that statement was made after the trailer had been returned, the evidence of the Appellant was that Mr Jones was familiar with the trailer having been a regular visitor to the Appellant's yard and that he was aware of the nature and extent of the damage to the trailer. No evidence was provided explaining to us why the evidence of Mr Jones was not able to be provided for consideration at the November hearing. 8. With respect to the claim for reimbursement of the amount paid to Mr Scott the Appellant acknowledged that he had not made any submissions concerning the application of s 60(3). He now contends that s 60(3)(c) is the subsection upon which he relies, namely that his case was relatively much stronger than the case of the Respondent and that the relative strengths of the parties' cases constitute special circumstances justifying an award for costs. 9. With respect to the Appellant's application for an extension of time for lodgment of the appeal, the Appellant relied upon an email from the Tribunal's registry at Newcastle, dated 14 December 2022. That email is addressed to him and states that the orders made on 24 November 2022 do not require the Appellant to lodge any submissions or evidence. It further states that the Appellant does not therefore require an extension and that all issues can be raised at the hearing on 20 January 2023. At that stage it appears that the realist application was listed for hearing on 20 January 2023. The Appellant informed us that the reason that that email was issued by the Tribunal to him on 14 December was because he rang and enquired about whether he needed an extension of time to lodge an appeal. On the following day (15 December 2022), the Appellant sent an email to the Tribunal asking for "internal review on the procedures and orders" made in the proceedings because he was dissatisfied about aspects of the Decision. 10. As stated above, the realist application was withdrawn and the Tribunal noted the withdrawal on 20 January 2023. In response to a question from the Appeal Panel, the Appellant stated that the reason he took until 1 February 2023 to lodge the Notice of Appeal was that he needed time to put together all the relevant paperwork. Respondent's contention 1. The Respondent opposes time being extended for lodgment of the appeal. The Respondent also contended that there was no evidence before the Tribunal of the extent of the work done by the Appellant in attempting to repair the damaged trailer and that the only photographs shown to the Tribunal were those produced by Mr Scott. The Respondent also objected to paying for Mr Scott's invoice. The Respondent acknowledged that there was no other expert report provided to the Tribunal for consideration. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal concerning consumer claims are required to be lodged within 28 days from the date on which the Appellant was notified of the decision (see r 25 Civil & Administrative Tribunal Rules 2014). In this case, the 28 days commenced on 25 November 2022 and expired on or about 23 December 2022. Accordingly, the appeal was lodged approximately five weeks out of time. 2. By s 41 of the NCAT Act time may be extended for lodgment of an appeal. 3. The matters to be considered when determining whether to grant an extension of time were set out in Jackson v New South Wales Land & Housing Corporation [2014] NSWCATAP 22. Those matters may be summarised as follows: 1. The discretion to extend time can only be exercised in favour of an Applicant upon proof that strict compliance with the rules will work an injustice upon the Appellant. 2. The discretion to extend time is to be exercised in the light of the fact that the Respondent has already obtained a decision in its favour and once the period for appeal has expired can be thought of as having a vested right to retain the benefit of that decision. 3. The matters to be considered in relation to whether time should be extended are: 1. the length of the delay (in this case five weeks); 2. the reason for the delay; 3. the Appellant's prospects of success (ie. whether the Appellant has a fairly arguable case); and 4. the extent of any prejudice suffered by the Respondent. 1. In this case the length of the delay is significant and is a factor against extending time. 2. The reason for the delay was that, according to the Appellant, the Appellant interpreted the email earlier referred to from the Tribunal dated 14 December 2022 as indicating that he did not need to file submissions or evidence in respect of the orders already made and that he should raise all issues at the hearing on 20 January. It is clear in our view that that email was referring to what, if anything, needed to be done with respect to the Respondent's relist application and had nothing to do with a prospective appeal. This view is supported by the email of the following day (15 December 2022) in which the Appellant set out arguments for the Decision to be reviewed in the light of criticisms he had of the Decision. In other words, he did not interpret the email of 14 December to mean he should do nothing until 20 January, rather he sent an email on 15 December setting out what he thought were errors made by the Tribunal in the Decision. There is no evidence that he took the matter any further until lodgment of the Notice of Appeal on 1 February 2023. 3. It is our view that it was not reasonable for the Appellant to have interpreted the email of 14th December as advising him that he need not do anything about appealing until the hearing on 20th January 2023. Accordingly, it is our view that the Appellant's reason for filing the Notice of Appeal out of time is not one that would cause us to consider that it is appropriate to extend time. 4. The next factor to take into account is the Appellant's prospects of success in the appeal. For reasons which are set out later in in this decision, we are of the view that the Appellant's appeal has little merit and therefore there would be no clear injustice arising by reason of refusing to extend time for lodgment of the appeal. 5. The next factor is whether the Respondent has suffered prejudice by reason of the delay in lodgment. In our view, there does not appear to be any prejudice to the Respondent other than the obvious one that final resolution of the dispute between the parties is delayed by reason of the appeal process. 6. We now turn to the balance of the Appellant's contentions. It is relevant to state that under the NCAT Act an appeal is available as of right on any question of law (see s 80(2)) and, with leave on other grounds. In this case because the decision was made in the Consumer & Commercial Division the other grounds are regulated by cl 12 of sch 4. It provides as follows: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (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). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. An error of law may arise in different ways. One way is if there has been a failure to provide proper reasons. A second is whether there has been a failure to provide procedural fairness. In this case we were neither provided with a transcript of the proceedings or with a transcript of the additional reasons given orally. Accordingly, the Appellant is not able to make out any error of law based upon a failure to provide proper reasons or a failure to afford procedural fairness. The only submission made in this context by the Appellant was that the Tribunal refused to consider certain evidence concerning the repair work undertaken by the Appellant to the trailer. We were shown a particular photograph (the one earlier referred to on page 41). In our view, it does not assist in any way in determining whether the cost of repair should be considered to be $800 or $110 or some other figure. What was required was a quotation and none was provided to the member at first instance. The Appellant attempted to remedy this deficiency by tendering the statement of Geoff Jones in this appeal. Generally fresh evidence cannot be relied upon in an appeal unless it was not reasonably available at the first hearing. The reason for this is that if fresh evidence were to be allowed on an appeal, cases would not be finalised with due dispatch. Rather a party, if dissatisfied with a decision, would seek to improve on their evidence by subsequent lodgment of fresh evidence. In this case there is no explanation of why the Geoff Jones statement was not provided for consideration at the hearing on 24 November. Accordingly we reject it. Even if we were to consider accepting it consideration would need to be given to the consequences for the Respondent. The Respondent might wish to lodge countervailing evidence but has been denied that opportunity. 2. For the above reasons, we are of the opinion that the deduction of $800 by the Tribunal does not display any error of law or a ground that would fall within the provisions of cl 12. Accordingly, that aspect of the appeal is rejected. 3. We now turn to the question of whether the amount paid to Mr Scott should be the subject of an order in favour of the Appellant. 4. The Appellant's difficulty is that it appears from the Decision that he did not specifically make submissions as to the basis for explaining why special circumstances exist warranting an award for these costs. In the appeal he has done so by relying upon s 60(3)(c). An issue with reliance upon that ground is that it would require us to revisit the whole of the evidence between the parties so as to be confident that the relative strengths of the parties was such that the Appellant's case was much stronger than the Respondent's justifying categorisation that there were special circumstances. It is not appropriate for us to undertake this exercise because we do not have all of the information necessary to do so. For example, we have not been provided with bundles of the documentary evidence provided by each of the parties to the member at first instance or a copy of the transcript (as stated earlier). 5. Generally matters not raised at first instance cannot be raised on appeal. This is because if the matter had not been raised at first instance but is raised on appeal questions arise as to how the other parties (in this case the Respondent) would have defended the contentions made against them. 6. A question also arises as to whether the appeal would have been avoided had the Appellant raised at the primary hearing the arguments he is now raising. In any event the general position with respect to small claims (that is claims involving less than $30,000) is that each party is to pay their own costs. It requires the tribunal to find that there are special circumstances in order to obtain an order that costs be paid. The Appellant's submission that special circumstances existed in this case was based on the submission that his case was much stronger than the Respondents case. For the reasons already stated we do not think we can or should review the evidence to decide whether that submission should be accepted. 7. A further reason for rejecting this aspect of the appeal is that an award for costs is a discretionary decision. This is apparent from the wording of s 60 which says that the Tribunal "may" award costs. In House v The King [1936] 55 CLR 500 the High Court set out the basis upon which an appeal court or tribunal may set aside a discretionary decision made by a judge or tribunal member at first instance. It is not sufficient that the Appeal Panel might have taken a different view (and in this case awarded the Scott's costs), but rather it is necessary to establish that the Tribunal acted on a wrong principle by allowing extraneous or irrelevant matters to guide him or her, or by taking into account some material consideration that should not have been considered, or not taking into account some material consideration that should have been considered. In this case there is no evidence of an error of that kind. Rather, the Tribunal determined that the Appellant's claim did not support the conclusion that there were special circumstances warranting an award for costs, but there is no evidence of the Tribunal either taking into account something that should not have been taken into account, or the opposite (not taking into account something that should have been). 8. For the above reasons this aspect of the appeal is also rejected. In conclusion our view is that no injustice arises by refusing to extend time for lodgment of the appeal. 9. It follows from the reasons set out above, that the following orders should be, and are, made: 1. Leave to appeal refused. 2. Appeal 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: 14 June 2023