Civil and Administrative Tribunal New South Wales Medium Neutral Citation: John Kucza v Community Training Australia Pty Ltd [2014] NSWCATCD 16 Hearing dates: 29 November 2013 Decision date: 17 January 2014 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: Course fees are not due and owing in respect of course fees from and including Stage 2 of the applicants counselling course. The name of the respondent is amended from Community Training Australia to Community Training Australia Pty Ltd Legislation Cited: Consumer Claims Act Fair Trading Act 1987 NSW Competition and Consumer Act 2010 Category: Principal judgment Parties: John Kucza (the applicant) Community Training Australia Pty Ltd (the respondent) File Number(s): GEN 13/56412 reasons for decision Application 1The application was lodged on 31 October 2013. A written statement was provided with the application. 2The matter came before me on 29 November 2013. There was no appearance by the respondent. There appeared on the Tribunal file a copy of a notice of hearing addressed to the respondent dated 12 November 2013. That notice was sent to 3 different addresses, at least one being the registered office and another being the principal place of business for the respondent. This notice advised of the time and location of the hearing. I perused the Tribunal emails and documents sent. There was no communication from the respondent explaining the absence. Being aware of the Registrar's standard practices in notifying parties of the time and place of hearing as set out in her statutory declaration of 29 February 2012, I was satisfied notice of hearing of today's proceedings was posted to the respondent and it had been given notice of the hearing and that the hearing notice had not been returned. 3Further, I was satisfied that the justice of the case requires the matter proceed in the absence of respondent having regard to the fact that the notice of hearing indicated the matter was for hearing and conciliation. Further, the applicant indicated that fees were being charged on an ongoing basis and he would suffer significant prejudice if the matter was adjourned and not released on the hearing date that had been set. That notice also contained the following warning to parties: "It is important you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding on you". Further information on the back side of the hearing notice indicated steps a party might take to seek an adjournment if attendance at hearing was not possible. No such request had been made by the respondent. Jurisdiction 4The applicant is a consumer and the respondent is a supplier of goods as defined in the Consumer Claims Act. The matter is a consumer claim in that the applicant seeks relief from payment for supply of services. 5By virtue of section 28 of the Fair Trading Act 1987, the Australian Consumer Lawapplies to NSW jurisdiction. The ACL is set out in a schedule of the Competition and Consumer Act 2010. 6At section 60, the ACL provides a consumer guarantee: 60 Guarantee as to due care and skill If a person supplies, in trade orcommerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. 7The Act also provides a guarantee that services will be fit for a particular purpose made known: 61 Guarantees as to fitness for a particular purpose etc. (1) If: (a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and (b) theconsumer makes known, expressly or by implication, to: (i) the supplier; or (ii) aperson by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier. (4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer. 8It is not a settled area of law as to whether provision of teaching and learning courses is a supply in trade or commerce. The failure of the respondent to appear meant that no submissions were made that such services were not supplied in trade or commerce. In my view, though education services such as those of the respondent may be paid for under government funding agreements such as the HECS-HELP and VET Fee-Help, such educational providers engage in trade or commerce in that they market course services sell such educational materials to fee paying consumer students. 9The applicant took the course by correspondence. Even though the respondent appears to be based in Queensland, the services were provided in NSW. 10The claim is under the jurisdictional limit of $30,000.00 and the transaction occurred in the last three years. The Tribunal has jurisdiction to hear the matter. ISSUES 11The issue was whether the represented provide the courses with due skill and care and whether they were fit for the purpose the applicant made known to the respondent. APPLICANT'S EVIDENCE 12The applicant gave sworn oral evidence and relied on his written statement attached to the application. 13He said he commenced a Diploma in Counselling with the respondent. He made known to them that: (a)all materials for the course were to be included in the initial fee; (b)that he could only do testing one-to-one with personal interaction with a tutor at a campus. 14The applicant said that he was required to do testing through online facilities he could not access. Course material were badly written, with poor grammar. He said materials were "roughshod, amateur and atrocious". They were not provided in a timely manner. 15He said that for Course 2 and those following he had not gone past the census date for establishment of his debts for Stage 2 and following. He stated that during Stage 1 the course was reasonably provided and he should pay for those services and materials. RESPONDENT'S EVIDENCE 16No evidence was provided by the respondent. CONCLUSIONS 17On the balance of probability and the only evidence provided to the Tribunal in light of the respondent's absence, I find that the applicant has discharged his onus to show that the course was not provided with due skill or care and that the need for testing in a personal environment was no catered for. 18The notes of hearing made by me on 29 November 2013 indicate the name of the respondent ought to be amended to Community Training Australia Pty Ltd. The company extract reflects that the respondent is a corporate entity with ABN 28 110 125 838. It has the registered business names, "The Counsellors" and "The Mediators". On perusal of the file when it was returned for these reasons to be written, I see that no such order has been made. The orders are amended accordingly. COSTS 19There were no exceptional circumstances justifying the making of a costs order. ORDERS 20On 29 November 2013 the following order was made: 21The Tribunal declares that course fees are not due and owing in respect of course fees from and including Stage 2 of the applicant's counselling course. 22Pursuant to section 50 of the Consumer, Trader and Tenancy Tribunal Act the following order is made: 23The name of the respondent is amended from Community Training Australia to Community Training Australia Pty Ltd. G Bassett General Member Civil and Administrative Tribunal of New South Wales 17 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 16 May 2014