Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Matysik v EBay Australia New Zealand Pty Ltd [2023] NSWCATAP 201 Hearing dates: 13 June 2023 Date of orders: 24 July 2023 Decision date: 24 July 2023 Jurisdiction: Appeal Panel Before: G Ellis SC Senior Member P H Molony, Senior Member Decision: (1) Insofar as it is required, leave to appeal is refused. (2) The Appeal is dismissed. Catchwords: CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers APPEALS — Further evidence not admitted — Evidence available at hearing – no question of law – leave to appeal refused Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013, s 80, s 81, cl 12(1) of Sch 4 Civil and Administrative Tribunal Regulation 2022 , cl 9 Fair Trading Act 1987, s 79E. s 79G Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Baranowski v Walker [2023] NSWCATAP 59 Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATAP 155 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Craig v The State of South Australia (1995) 184 CLR 163 Cuthbert v The Owners – Strata Plan No 34194 [2023] NSWCATAP 107 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None Category: Principal judgment Parties: Matthew Matysik (Appellant) EBay Australia New Zealand Pty Ltd (Respondent) Representation: Appellant (Self-represented) Corrs Chambers Westgarth (Respondent) File Number(s): 2023/00118174 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 March 2023 Before: C Campbell, General Member File Number(s): GEN 22/56124 REASONS FOR DECISION Introduction 1. Mr Matthew Matysik (the appellant) has made an internal appeal against a decision made in the Consumer and Commercial Division (the CCD) of the Tribunal on 16 March 2023, when the Tribunal dismissed his consumer claim against EBay Australia New Zealand Pty Ltd (the respondent) because it did not have jurisdiction to make the orders sought. The claim related to 6 purchases made on the eBay website (eBay) of various motor parts. 2. The respondent did not appear at the Tribunal hearing and the decision was made in its absence. 3. The appeal was filed within time on 13 April 2023. In his appeal, the appellant raised what he contends are five errors of law made by the Tribunal in dismissing his consumer claim for want of jurisdiction under the Fair Trading Act 1987 (NSW) (the FTA). 4. The respondent has filed a reply to the appeal in which it seeks to: 1. support the correctness of the Tribunal's dismissal of the appellant's claim; 2. explain its non-attendance at the initial hearing on the basis that it was not served by the appellant at its correct address; and, 3. adduce new evidence on appeal going to the nature of the respondent's role within eBay's structures, eBay's terms and conditions, and the nature of the transactions entered into by the appellant. 1. In response to the respondent's reply, the appellant is also seeking to adduce new evidence, being a domain name search, going to the respondent's role in operating eBay. 2. The appeal was listed for hearing before us on 13 June 2023. At that hearing the appellant was self-represented and Ms Andrews appeared for the respondent. 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) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v The State of South Australia (1995) 184 CLR 163 at 179. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: 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. 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 CCD are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. 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 CCD has satisfied the requirements of cl 12(1) of Sch 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, at [84], the Appeal Panel stated 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 the NCAT Act, s 81 deals with the determination of internal appeals. (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. In circumstances where an appellant is not legally represented, the Tribunal should look at the grounds of appeal generally in order to determine whether a question of law has in fact been raised, but must ensure that procedural fairness is given to the respondent before considering it: Prendergast at [12]. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel explained at [13]: 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. 1. Importantly, in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal. Materials before the Appeal Panel 1. in considering this appeal we had the following materials before us: 1. the decision of the Tribunal made by General Member Campbell on 16 March 2023; 2. appeal directions made on 28 April 2023; 3. notice of appeal filed 13 April 2023 with attachments numbered 1 to 30; 4. reply to appeal filed 12 May 2023 with attachments, namely: 1. ASIC Historical Search as of 14 December 2022; 2. eBay Customer Service Agreement; and 3. eBay Payment Terms of Use; 1. bundle of documents to headed "evidence presented by Matthew Matysik at hearing" (48 pages); 2. respondent's appeal submissions with attachments which include the reply to appeal and a transcript of the hearing (described as a record of interview) on 16 March 2023; and, 3. appellant's response to respondent's submissions. The decision being appealed. 1. The decision is in writing. In it the Tribunal set out the evidence relating to the six transactions relied on by the appellant (then the applicant). TRANSACTION 1 5 On the 13.09.22 the applicant purchased a fan for $172.89. Upon delivery he discovered he had been sent a radiator and not a fan. He made contact with the "seller" whose details were available on the eBay website. The seller informed him that there was no problem with him returning the item and he would get a refund. The seller said put it in a box send it back and you will get your refund. 6 He refused to return the item and told the seller they could come and collect it from him. He said he had spent a day and a half researching the item and why should he have to spend more time returning the item. TRANSACTION 2 7 On the 14.09.22 he purchased a hose for $30.09. When the hose was delivered it did not match the hose depicted in the photograph on the Ebay website. 8 The applicant contacted the seller who informed him that the picture on the Ebay site was supplied to him by the manufacturer. The seller informed the applicant that he could return the item by going back on the Ebay site and put in a "Return Request" and as Ebay was still holding the funds at that time, he would receive a refund. The applicant said he never made the "Return Request" through the Ebay site. TRANSACTION 3 9 On the 15.09.22 the applicant purchased a set of fan belt pulleys for $101.12. Upon delivery the belt pulleys did not match the description on the Ebay website. He contacted the seller who said it could replace them but asked for the vehicle's VIN. The applicant said he did not see why they would need that vehicle identification marker and therefore declined to provide the information sought by the seller. 10 He made no further contact with the seller or Ebay. TRANSACTION 4 11 The applicant purchased another fan which he ordered on the 21.09.22 for $332.50. he was told delivery would be between 3rd and 7th October 2022. When the item was not delivered by the 07 November 2022 he contacted the seller. The seller did not respond. He took no further steps to either make any further attempt to contact with the seller or with Ebay through its website. 12 The applicant said he did not make lodge a "Return Request" for this item. TRANSACTION 5 13 On the 23.09.22 the applicant ordered a drive belt for $43.96, which was to be delivered by the 04.10.22. He received the tracking information from Australia Post. The item was being transferred between points in Victoria (where the applicant lives) and then on the 04.10.22 the Australia Post tracking information showed it had been sent to a processing facility in the Northern Territory. 14 He said he just gave up. He did not contact the seller. He did not contact Australia Post concerning the whereabouts of the item, notwithstanding he had the tracking number. Nor did he make a "Return Request". TRANSACTION 6 15 On the 19.10.22 the applicant purchased a temperature sensor from the Ebay website for $16.91. The item received but was not the item displayed on the website. He made no attempt to contact the seller. He did not lodge a "Return Request" 16 The applicant seeks an order for Ebay to refund him for the cost of all of the above items. 17 He makes a further claim for a reimbursement for the costs associated with the hire of a truck in the sum of $840. A copy of the tax invoice is before the Tribunal in the sum of $1,400 for 35 days hire fees from the 12.09.22 to 15.10.22. He submitted part of these costs were incurred as a result of delay with him being able to commence the work on the vehicle on the 21.09.22, as he had planned. 18 He conceded he could have purchased the parts from a BMW dealer but at a higher price than that which they were being sold on Ebay. 19 The applicant said he was not aware of any terms and conditions attaching to the use of the Ebay website. Although he denied having any knowledge of the terms and conditions it was his submission that the "Sellers" are agents for Ebay and that Ebay is liable for the refund. He said he had no contract with Ebay. 20 The applicant conceded he became aware of the "Refund Return" facility offered to users of the respondent's platform. He declined to avail himself of this in relation to all six of the impugned transactions. He said he did not go back to the sellers as he was saving the complaints to make this application. 1. Having made those findings the Tribunal then turned to the question of jurisdiction. 21 The tribunal's jurisdiction derives from Part 6A of the Fair Trading Act (NSW)1987 ("FTA"). The meaning of a "consumer" claim is set out in S 79E of the (FTA): "s.79E Meaning of "consumer claim (1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services- (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) ... 22 By reason of ss 28 & 32 of the FTA the provisions of the Australian Consumer Law 2010 (NSW) ("ACL") is a law of NSW. … 23 The Tribunal is not satisfied this is a consumer claim within the meaning of S79E FTA. 24 I am not satisfied the respondent was a supplier of goods or services to the applicant. I am satisfied the applicant entered into a contract or an agreement with the respondent for the purchase of the goods or the supply of services. On the applicant's own evidence there was no agreement between him and the respondent. 25 The Tribunal does not accept the submission that the sellers are agents for the respondent. But rather the tribunal finds the respondent provides a platform for the sellers to advertise their goods and services. The applicant paid the sellers for their advertised sum. His complaints were directed to the sellers. I am satisfied the goods are sold by the sellers to the applicant. And when the applicant was dissatisfied with their products the applicant made contact with the sellers who had supplied him with the goods. 26 For all these reasons I find the applicant is not a consumer of goods or services supplied by the respondent within the meaning of the Act, and the application is dismissed as the Tribunal has no jurisdiction to make the orders sought. Grounds of appeal 1. The appellant relies on grounds of appeal which he characterises as errors of law, or of mixed fact and law. We summarise them as follows. 1. That on the basis of its findings in the second sentence of para [24] of its decision, the Tribunal incorrectly found that the transactions did not give rise to a consumer claim by the appellant within the meaning of section 79E of the Fair Trading Act 1987 (NSW), under a contract for the supply of goods or services by the respondent. 2. That the Tribunal's finding in the last sentence of para [24], that on the appellant's own evidence there was no contract with the respondent, was unreasonable and against the weight of the evidence. The appellant characterised his purchases as akin to a purchase from an ordinary store where his agreement is with the store, not with the supplier of the goods. Insofar as the appellant argues that the Tribunal's conclusion was against the weight of the evidence, leave to appeal is required. 3. With respect to the Tribunal's conclusions in paragraph [25] of the reasons, the appellant submitted that they were so far at odds with the evidence that they constituted an error of law. Specifically he relied on the following points: 1. His assertion that he had never submitted that the 'sellers' were agents of the respondent; 2. His assertion that Tribunal's finding that the respondent provides 'a platform for sellers to advertise their goods and services' was contrary to the evidence before the Tribunal, which demonstrated that the respondent bills for items that are sold, determines whether there should be refunds, and advertises itself as an online store. 3. An assertion that the finding that he paid the sellers was contrary to the evidence. 4. The fact that he complained to a seller did not demonstrate that he had not purchased from the respondent. 5. The evidence does not support the conclusion that he had purchased from the sellers. "[T]he sellers were what their names suggests. Sellers or sales people." 1. The fact that the respondent had charged him for the supply of the goods by the sellers gave rise to a collateral contract. 2. If the Tribunal was correct in finding that there was no agreement with the respondent for the supply of goods, but agreements with each of the six sellers, then the evidence before the Tribunal demonstrated a collateral contract for the supply of services (fee processing and refund management among others) with the respondent. New evidence 1. Both parties sought to adduce new evidence on appeal. 2. The respondent sought to rely and make submissions on the documents attached to its reply to appeal. It wished to argue that while the decision reached by the member was correct in some respects, the new evidence demonstrated the true nature of the operations of various eBay entities. The respondent did not seek to appeal the decision itself, despite asserting in submissions that it had not been served with the original application and thereby denied procedural fairness. Similarly, the respondent did not apply to have the Tribunal decision made in its absence set aside pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW). Both of these options were available to it and may well have resulted in a rehearing in which it could adduce the evidence it now seeks to rely on in this appeal. 3. The appellant on appeal sought to rely on the domain name search to demonstrate the respondent's involvement in eBay. 4. The reception of new evidence in appeals from the CCD is restricted to the circumstances set out in cl 12(1)(c) of Sch 4 to the NCAT Act. This requires among other things, that the new evidence be, "evidence that was not reasonably available at the time the proceedings under appeal were being dealt with". In Cuthbert v The Owners – Strata Plan No 34194 [2023] NSWCATAP 107 the Appeal Panel explained that: Although the Contractor did not refer to it, as his appeal is against a decision of the Consumer and Commercial Division, the provisions of Sch 4 clause 12 of the CAT Act apply to any "new evidence" upon which the Contractor seeks to rely. Clause 12(1)(c) states that "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 Baranowski v Walker [2023] NSWCATAP 59 the Appeal Panel said: … we should note that both parties provide documents to the Appeal Panel that were not part of the evidence before the proceedings at first instance. Leave should not be granted to permit these documents in this appeal as the material is evidence which was reasonably available at the time of the original hearing: see Sch 4 cl 12(1)(c) and Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 1. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23] – [24] the Appeal Panel considered when evidence is not reasonably available: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 1. We think it clear that the new evidence sought to be relied on by both parties was readily available to any person seeking to obtain them prior to the Tribunal hearing. In those circumstances, the new evidence sought to be relied on by both parties is not admissible on appeal. 2. A consequence of the respondent's decision not to itself appeal or seek to set aside the Tribunal decision, but to oppose the appellant's appeal, is that it cannot rely on new evidence that it may have sought to lead on a fresh hearing. Similarly, the appellant cannot rely on new evidence that was reasonably available at the time of the initial hearing. Consideration of appeal grounds Ground (1) 1. This ground of appeal is based on par 24 of the decision (quoted in par 19 above). The paragraph contains three sentences which contain two inconsistent propositions. In the first, the Tribunal finds that the respondent did not supply goods or services to the appellant. So too, in the third sentence, it finds no agreement between the appellant and the respondent. In the middle sentence however, the Tribunal finds that they entered into an agreement for the purchase of goods or the supply of services. 2. The appellant relies on the middle sentence to argue that the Tribunal misapplied s 79E of the FTA when finding that the claim made by the appellant was not a consumer claim. This, the appellant says, is a conclusion that no reasonable tribunal could reach. Whether or not that is the case raises a question of law. 3. The respondent argues that on reading paragraph 24 it is obvious that the words "did not" are missing from the middle sentence of the paragraph, which should read, so as to be consistent with the balance of the paragraph: I am satisfied that the applicant did not enter into a contract or agreement with the respondent for the purchase of goods or the supply of services. 1. We think the respondent is correct. Read in the context of a paragraph 24 alone, as well is in the context of the whole decision, we think it obvious that there is a slip in the second sentence of paragraph 24 by the omission of the words "did not". The result of that omission is that the second sentence of the paragraph is at odds with and inconsistent with the other sentences in the paragraph. 2. Due to that slip, the second sentence in the paragraph does create some of the difficulties complained of by the appellant. Because of the obvious nature of that slip however, we think the mistake can be disregarded on appeal. The second sentence should be read as if it contains the words "did not". This means there is no merit to ground (1). Ground (2) 1. The appellant says that the Tribunal's finding that it did not have jurisdiction was made without evidence to support it and that it was unreasonable. This raises questions of law. 2. That decision was made on the basis that the Tribunal was not satisfied that there was a contract between the appellant and the respondent, or that the respondent supplied goods to the appellant. As a result the Tribunal found that the claim was not a consumer claim within the meaning of s 79E of the FTA which provides: (1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services— (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer. 1. Supply is defined in s 79G to mean: (1) For the purposes of this Part, a reference to the supply of goods includes a reference to any of the following— (a) supplying goods by way of sale, exchange, lease, hire or hire-purchase, (b) resupplying goods, (c) agreeing to supply goods, (d) supplying goods together with services. (2) For the purposes of this Part, a reference to the supply of services includes a reference to any of the following— (a) providing, granting or rendering services for valuable consideration, (b) agreeing to supply services, (c) supplying services together with goods. 1. The evidence considered by the Tribunal consisted of the appellant's oral evidence, his written submissions and copies (often very difficult to read) of screenshots said to evidence the transactions. Each of the six transactions involved him selecting a car part for sale on eBay, sold by a specified seller, for a specified price. The sellers' names are not necessarily the names of individuals, companies or business names, although some may be; e.g. Transaction 3 – "Prestige Parts". Others are akin to nick names: "a-premium-au". He produced screenshots – not all of the same type – with respect to each transaction. Common among them were his "My eBay Purchases," which showed, with respect to each transaction, the date, order number, item purchased, whom it was sold by, the price and estimated delivery date. The names of the sellers did not include that of the respondent. Also among the documents relied on – although all did not show the same level of detail - were screenshots from his National Bank Credit Card Account showing that payments for a variety of amounts had been made and, in some but not all, cases merchant details are visible which read: eBay Shopping | Online Only … Also known as ABN EBAY AUSTRALIA & NEW ZEALAND 22086288888 EBay Australia & New Zealand Pty Limited Penndoc Pty. Limited The merchant details are provided by Look Who's Charging. While every effort is made to Ensure they're correct, we can't guarantee it. 1. These are not receipts from the respondent or eBay, but screenshots from the National Bank recording a transaction and providing merchant details which the Bank does not warrant. 2. There was no evidence concerning Penndoc Pty. Limited. 3. In his oral submissions to the Tribunal (and written submissions on appeal) the appellant argued that he was purchasing the auto parts from the respondent, whom he said operated eBay, rather than from each of the nominated sellers. He suggested that a proper comparison was with a store which has sales people or "sellers" to sell goods on behalf of the store. He resisted the notion that he purchased from the individual sellers or that they supplied him with the auto parts. He asserted that he had only dealt with eBay. He denied being aware of any terms and conditions. 4. The applicant's oral evidence was as noted by the Tribunal in its reasons. A review of the transcript reveals that he said that he had contacted the sellers in Transaction 1 to 3 concerning his complaints and refunds. He was unsuccessful in contacting the seller in Transaction 4. He made no attempt to contact the sellers in Transactions 5 and 6 where the auto parts did not arrive when ordered. 5. He had not been in contact with eBay regarding any transaction prior to commencing the proceedings. 6. In Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATAP 155 at [22] – [30] an Appeal Panel considered the law with respect to unreasonableness in decision making: 22. The appellant cites Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] and [105] and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [82]. 23. In Li, the Minister appealed by special leave contending that, contrary to the conclusions of the Federal Magistrates Court and the Full Court of the Federal Court, the Migration Review Tribunal did not act unreasonably in making its decision refusing to defer its decision on the respondent's application to review a decision refusing her a visa, and did not fail to apply such requirements of procedural fairness as were imposed on it by the Migration Act 1958 (Cth). 24. At [76], Hayne, Kiefel and Bell JJ, constituting a majority, said (footnotes omitted): "As to the inferences that may be drawn by an appellate court, it was said in House v R that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." 25. At [105] Gageler J, agreeing in the result but delivering separate reasons, said (footnotes omitted): "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason". Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". 26. SZVFW was an appeal from a decision of the Full Court of the Federal Court holding that a judge of the Federal Circuit Court was correct to find that a decision of the Refugee Review Tribunal was legally unreasonable. 27. The passage in SZVFW cited by the appellant, namely [82], requires the context of the preceding few paragraphs. Nettle and Gordon JJ said (footnotes omitted): "[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable. [79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. [80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review. [81] How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain. [82] Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused — where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'". 28. Kiefel CJ said, at [10] – [11] (footnotes omitted): [10] In the joint judgment in Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. ... [11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies." 29. Adopting an appropriate level of restraint, because an appeal of this nature does not succeed just because we might have decided differently had we been in the Tribunal's shoes, the question for us raised by this ground of appeal is whether the outcome, the Tribunal's decision, lacked an evident and intelligible justification. If it lacked an evident and intelligible justification then it was legally unreasonable and should be set aside. 30. An associated question raised in the appellant's submissions, but in reality, being a different ground of appeal, is whether the Tribunal's decision was so unreasonable that no decision maker would have made such a decision. 1. We think the conclusion reached by the Tribunal member was one that was reasonably open on the facts presented and in accordance with the applicable law. The evidence before the Tribunal was clearly capable of supporting the conclusion that the appellant had not purchased the auto parts from the respondent, but from the individual sellers using eBay to facilitate those transactions, and that it had been the responsibility of each of the sellers to supply and deliver auto parts of acceptable quality to him in accordance with their description. The fact that the appellant agreed in his oral evidence that he had contacted a number of sellers regarding unsatisfactory supply, supported this understanding. 2. While the appellant advanced a different explanation of the transactions, in which the respondent was the seller and the "sellers" had no contractual relationship with him that obliged them to supply the auto parts, the Tribunal preferred its own conclusions as to nature of the transactions. Its conclusions of fact were clearly open to it, as was the conclusion that the auto parts were purchased from and were be supplied by the sellers, using eBay as a medium by which the transactions were facilitated. As a result, the Tribunal concluded that the claim was not a consumer claim within the meaning of s 79E of the FTA. There was no contract to supply auto parts between the appellant and eBay, but a series of contracts with sellers who were to supply the auto parts. 3. The decision was not legally unreasonable. 4. Insofar as the appellant claims that this conclusion by the Tribunal was against the weight of the evidence and seeks leave to appeal, we consider that the decision made by the Tribunal was not against the weight of the evidence for the reasons stated above. Leave to appeal on that basis is therefore refused. Ground (3) 1. With respect to ground 3(a) the appellant says that, at [19], the Tribunal incorrectly stated that he had submitted that, "the "Sellers" are agents for eBay, and that eBay is liable for the refund." The Tribunal went on to reject that submission, at [25]. What the appellant contended in oral submissions was that the sellers acted on behalf of eBay, like the salespeople in a department store. He did not characterise them as agents: the Tribunal did. 2. As the appellant has not provided us with a copy of his written submissions to the Tribunal, we do not know whether they contained any characterisation by him of the legal relationship between the sellers and eBay. Certainly, there was no such characterisation in his consumer claim initiating the proceedings. 3. In our opinion the Tribunal's characterisation of the appellant's submissions as imputing an agency relationship between eBay, as principal, and the individual sellers, as agents, was clearly open, given that the appellant's submission was that sellers were acting on behalf of eBay. 4. In any case the Tribunal rejected that characterisation. We are not persuaded that there was an error of law in the Tribunal's characterisation of the appellant's submission, that the relationships between the sellers and eBay was one of agency, and, if there was, that it was a material error. 5. With respect to grounds (3)(b) to (e), we consider that these grounds seek to dispute conclusions of fact reached by the Tribunal, rather than raising questions of law. As such they require leave to appeal which can only be granted on the basis set out in cl 12(1)(a) and (b) of Sch 4 of the NCAT Act, namely that: … 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. 1. In considering whether to grant leave, much of what we have already said with respect to whether or not the decision was unreasonable is relevant. We will not repeat that in detail, but will address the specific items of evidence relied on by the appellant to demonstrate the Tribunal's errors, as he asserts them. 2. The Tribunal's conclusion that eBay provides "a platform for sellers to advertise their goods and services" is said to be contrary to the evidence, namely: 1. "bills for items sold", 2. that eBay determines whether there should be refunds, and 3. advertises itself as an "online store". 1. None of the documents and screenshots produced by the appellant contains a claim made on the appellant, by eBay, for payment to it of the costs of it supplying the auto parts involved in any of the disputed transactions. There are a number of screenshots of pages entitled, "My Purchases", which record a number of purchases and provide details of the auto parts in issue (including a picture), the price, who the goods were sold by (always the seller, never eBay), delivery details, together with option buttons labelled "Return this item", "Leave feedback", "Add to cart" and "More actions". There are no bills or invoices from eBay to the appellant evidencing a sale of the auto parts to him by eBay. The evidence that he did present pointed to the auto parts in issue being sold and supplied by the various sellers named on the eBay My Purchases web page, not eBay itself. 2. The presence of a "Return this item" option does no more than demonstrate that a process for returning purchases (and presumably claiming a refund where appropriate) is available on the eBay My Purchases web page. It does not demonstrate that eBay determines whether to pay refunds. The appellant's oral evidence with respect to Transaction 1 was that he discussed a refund with the seller, who told him he would get a refund if he returned the radiator in issue. With Transaction 2, the seller told the appellant that he would get a refund but, because "Ebay was still holding the funds", he had to put in a return request on eBay. The appellant did not do so. With Transaction 3 the seller offered to replace the pulleys, but requested a VIN number before doing so. The appellant declined to provide this. With Transaction 4, the appellant tried to contact the seller without success. He did not attempt to contact either of the sellers with respect to Transactions 5 and 6, where there had been no delivery. He made no contact with eBay, explaining that it did not have an email address or phone number. 3. All the contacts the appellant made regarding returning goods and obtaining refunds were with the sellers of items, not eBay. In one case he was asked to follow the procedure on the eBay site. There was no evidence before the Tribunal concerning what that procedure involved. It was not followed. Who decides whether or not to pay a refund under that procedure – eBay or the seller – is a matter of speculation. It follows that the evidence before the Tribunal did not demonstrate that eBay determines whether there should be refunds as claimed by the appellant. 4. Further, we think that the fact that the appellant contacted the sellers, when complaining about goods being of unacceptable quality, is evidence the Tribunal could take into account when concluding who the appellant understood had supplied him with the auto parts. 5. Concerning the appellant's assertion that eBay advertised itself as an "online store" we have perused the evidence that was before the Tribunal carefully and can find no reference to eBay holding itself out as an "online store". The National Bank screenshots for the appellant's credit card purchases do show, "eBay - Shopping | Online Only." This statement however is not made by eBay, and does not say that eBay is a store. What evidence there was before the Tribunal concerning whether or not eBay advertised itself as "online store" was not from eBay and was equivocal at best. 6. Similarly, while the National Bank screenshots constitute some evidence as to who the appellant paid, that evidence does not prove that the payments were for eBay. While the appellant said he made payments on the eBay website, the My Purchases screenshots indicates charges made by the sellers. 7. It follows that the evidence, which the appellant relies on to demonstrate that the Tribunal's conclusion that eBay provides "a platform for sellers to advertise their goods and services" is wrong, either did not exist, or was deserving of little or no weight. In those circumstances, we are not satisfied that the Tribunal's conclusion was contrary to the weight of that evidence, or unfair or inequitable as claimed by the appellant. 8. Leave to appeal in that regard is therefore refused. Grounds (4) and (5) 1. Next the appellant submitted that the fact that the respondent had charged him for the supply of the goods by the sellers gave rise to a collateral contract. Whether or not it did so is a question of law. 2. As we understand it, the intention underlying this submission is to bring the transaction within the second limb of the definition of consumer claim in s 79E(1) of the FTA, namely a claim "that arises under a contract that is collateral to a contract for the supply of goods or services." 3. This is not an argument that the appellant made in his oral submissions or in the consumer claim he made to the Tribunal. As we have not been provided with his written submissions to the Tribunal below, whether a similar submission was made there is unknown. 4. That being the case we conclude that that this is the first time that the collateral contract issue has been raised, and that, if it had been raised at first instance, evidence relating to it could have been explored by the Tribunal. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68, [1985] HCA 28 at [7] the High Court said: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. See also Suttor v Gundowa Pty Ltd (1950) 81 CLR 418 at 438, and Kazzi v Bechara [2021] NSWCATAP 166 at [31] – [32] 1. In those circumstances the collateral contract issue cannot be raised in this appeal. Orders 1. The Tribunal makes the following orders: 1. Insofar as it is required, 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: 24 July 2023