Smart Healthcare Pty Ltd trading as IREST Australia v Dakis [2024] NSWCATAP 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smart Healthcare Pty Ltd trading as IREST Australia v Dakis [2024] NSWCATAP 54 Hearing dates: 28 March 2024 Date of orders: 05 April 2024 Decision date: 05 April 2024 Jurisdiction: Appeal Panel Before: K Ransome, Principal Member G Burton SC, Senior Member Decision: Appeal dismissed. Catchwords: APPEAL – PROCEDURAL FAIRNESS – request for AVL link – non-appearance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Smart Healthcare PL t/as IREST Australia (Appellant) Suzanne Dakis (Respondent) Representation: T X O Nguyen (IREST Australia) (Appellant) S Barros (Respondent) File Number(s): 2023/00465013 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Date of Decision: 8 November 2023 Before: P Millar, Member File Number(s): GEN 23/36724

reasons for DECISION 1. On 25 June 2023 inquiry was made of a sales assistant at the appellant's store about a massage chair for a 91 year old mother who suffered with osteoporosis. The sales assistant allegedly said that the chair offered had no issues if used on low intensity. On 27 June 2023 the chair was ordered and paid for. It was delivered on 1 July 2023. 2. On opening the packing, the instruction manual was sighted for the first time. It stated, among other matters, that "The following populations should not use this product - Patients with osteoporosis". After communications with the appellant who said that it offered assistance with cushioning and use but that medical issues were for the customer to discuss with the customer's GP, the respondent (then the applicant) on 23 August 2023 filed an application to the Tribunal for a refund as the appropriate relief for alleged contraventions by the appellant of the consumer guarantees of acceptable quality and fitness for disclosed purpose under the Australian Consumer Law. 3. It was not in contest that the application was in time in respect of a consumer claim as defined in the Fair Trading Act 1987 (NSW) which makes the Australian Consumer Law part of the law of NSW. 4. On 8 November 2023, the designated final hearing date, the Tribunal ordered a refund based on the respondent's evidence in the absence of the appellant. 5. The appeal was filed on 22 December 2023. This was within time if it was accepted that the appellant did not receive the Tribunal decision until 27 November 2023. We accept the appellant's uncontradicted evidence on date of receipt. 6. The appellant did not attend two directions hearings in the primary proceedings on 28 August and 14 September 2023, it was said because notice was not received. In that time the appellant moved its main business location and notified ASIC only in early November 2023. However, the appellant said that it did file and serve evidence in accordance with directions made on those occasions, although such evidence was apparently missing at the time of hearing (as recorded in the Tribunal's reasons). The thrust of the defence was to contest what the salesperson allegedly said and to counter the effect (whether or not the salesperson said what was alleged) of what appeared in the instruction manual by saying that "should not" did not mean "must not", the appellant sold product and did not give medical advice and that usage (at all and in what manner) was subject to a customer obtaining medical advice. We note that there was no submission we have seen that pointed to a warning with the product to obtain such medical advice and to use the product in accord with medical advice. 7. This appeal was restricted to the appellant's complaint about alleged absence of procedural fairness, which is a question of law that does not require leave to appeal: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW); Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP at [13]. The appellant said that it had not had the opportunity to present its case. On 18 October 2023 it had advised the Tribunal (on the evidence before us not copied to the respondent) that it sought a virtual meeting because "the company representative has some difficulties to attend in person on 8 November 2023". On the same date nine minutes later the relevant Tribunal registry responded that, before completing a request form, the appellant "must ask each party for their views about you taking part in the hearing by telephone or video". 8. On 20 October 2023 the appellant, again without a copy of the email to the respondent in the evidence before us, sent the Tribunal the required request and also sought a Vietnamese interpreter at the hearing (we note that on the appeal the appellant's representative presenting the case volunteered helpfully that she could progress the hearing mostly in English but with occasional assistance from the Vietnamese interpreter). 9. On 23 October 2023 the appellant, again without a copy of the email to the respondent in the evidence before us, emailed the Tribunal registry a copy of the air ticket to Melbourne in the name of the respondent's designated representative for the hearing that had an issue date of 23 October 2023. 10. On 30 October 2023, in response to the appellant's inquiry about "an update on this request" again not copied to the respondent on the evidence before us, the Tribunal registry responded on the same date 23 minutes later again pointing out the need to ask each party for its views on the request. 11. There is no earlier document in evidence before us showing when the appellant first communicated to the respondent that it had made the request and sought the respondent's views than an email of 3 November 2023. That email said "This is a follow-up email regarding our request to attend NCAT hearing by telephone which was sent on 1 November 2023. Could you please review and give us a response before 8 November 2023?" On 3 November 2023 the respondent emailed the appellant "Sorry I prefer you attend in person please". This was in the context where to the respondent's knowledge the appellant had not appeared at two directions hearings without notifying the respondent and so far as the respondent then knew without explanation. 12. Four days later, and the day before the hearing, the appellant on 7 November 2023 emailed the respondent "Evidence to explain why we are unable to attend hearing in person this 8th Nov 2023 has been submitted to NCAT directly on 23 October 2023. We might raise a request to attend in person on 16 November 2023, please update with NCAT to inform this change". There is no evidence before us that the material submitted to NCAT and now disclosed to have been submitted was provided even at this point to the respondent. 13. In an email on 28 November 2023 to the Tribunal registry, the appellant complained that it had been unable to arrange the requested telephone hearing. In response by email the same day the registry said, "The records for this case show that the Tribunal member considered your request for virtual attendance and it has been rejected". 14. The appellant maintained at the appeal hearing that it had not been notified that its request had been rejected. Yet it had not directly challenged the accuracy of para 1 in the primary member's reasons of 8 November 2023 that recited in some detail the procedural history in justification of proceeding in the appellant's absence. That included the following: "The Tribunal is satisfied that the [appellant then respondent] received the notice of hearing because the [appellant] subsequently applied for leave to appear at the hearing by telephone or video. That application was made on the basis that an officer of the respondent company would not be able to attend the hearing in person. This request was refused on the basis that the respondent company could brief another officer to attend the hearing on its behalf". 15. At the appeal hearing the appellant's representative was asked why, if as was maintained there was no answer received to the request, the appellant didn't make arrangements to have someone at the hearing. There was no substantive answer to that question. It seems to be the natural course if the appellant knew that the hearing was notified to be in person and had nothing that indicated its request for an alternative had been granted. 16. We also note that there was nothing in what the Tribunal or the respondent was told, at the time, as to why the representative who was travelling was the only person who had the knowledge to conduct the hearing. That appeared in the appellant's submissions on this appeal. 17. In the circumstances just described we see no procedural unfairness to the appellant. The Tribunal, and the respondent, proceeded on the basis of what the appellant had disclosed at the time. The appellant knew from 3 November 2023 that its request was opposed. There was no certainty, particularly when it did not indicate why the unavailable representative uniquely could represent the appellant, that the request would be granted, and all the more so if the request was opposed. Yet the appellant appears at all times to have proceed on the basis that its request would be granted without making arrangements in the event it was not. 18. The appeal is dismissed.