Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rascie Pty Ltd v Stricker [2015] NSWCATAP 76 Hearing dates: 18 February 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President R Titterton, Principal Member Decision: Application for leave to appeal refused Appeal dismissed Catchwords: Appeal - Civil and Administrative Tribunal (NSW) – consumer claim - decision of the Tribunal not against the weight of evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Australian Consumer Law Cases Cited: Auchettl v Kirk [2015] NSWCATAP 6 Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Rascie Pty Ltd (Appellant) Anna Stricker (Respondent) Representation: Mr A Winn, agent (Appellant) Ms A Stricker (Respondent) File Number(s): AP 14/53093 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal, Jurisdiction: Consumer and Commercial Division Date of Decision: 14 October 2014 Before: M Gilson File Number(s): GEN 14/38658 REASONS FOR DECISION 1. The appellant, a Harvey Norman franchisee, seeks to appeal from an order of the Consumer and Commercial Division of the Tribunal that it pay the respondent, a consumer, $2,996 to replace a television. 2. This is a matter where the appellant requires the leave of the Appeal Panel for the appeal to proceed. For the reasons given below, the Appeal Panel refuses to grant leave to appeal, and otherwise dismisses the appeal. 3. At the hearing of the appeal Mr Winn appeared as agent for the respondent. Ms Stricker represented herself, and attended by telephone. Grounds of Appeal 1. This dispute relates to a "flat screen" television. It is common ground that the respondent purchased the television from the appellant on 22 December 2013. About six weeks later the screen cracked. The appellant claims that this was impact damage caused by an external force and was not a manufacturing error. The appellant did not appear at the hearing. The Tribunal found in favour of the respondent and ordered the appellant to pay the full cost of the television to the respondent. The appellant appealed 15 days later. 2. The appellant states its grounds of appeal as follows: 1. Service agent saying damage caused by external force. Agent (Trial Bay Electronics) 2. L G Manufacturer has also confirmed damage caused by impact and not manufacturing. 3. All reports state panel damaged by external force. 1. The appellant submits that the Tribunal erred in failing to take into account evidence which demonstrated that the crack to the screen was impact damage caused by an external force and was therefore not a manufacturing error. It relies, in particular, on a report of Ms Trudy Slapp, of Trial Bay Electronics dated 26 August 2014 (the report). Error of law? 1. In the notice of appeal the appellant stated that it is not seeking leave to appeal. 2. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise. That section states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds. 3. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that in circumstances where an appellant is not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred to the following at [13]: 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 has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 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 was so unreasonable that no reasonable decision-maker would have made it. 1. As to a failure to provide proper reasons, we note that pursuant to s 62(2) of the Act a party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. However, neither party asked the Tribunal to provide a written statement of its reasons. 2. In our view there is nothing in the notice of appeal which suggests that the appellant has an arguable question of law. In our view the appellant requires the leave of the Appeal Panel for the appeal to proceed. Leave to Appeal 1. Schedule 4, clause 12 of the Act states that: 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: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 1. 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. 1. The expression "miscarriage of justice" was considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. There the Appeal Panel stated at [71] that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 2. There is no suggestion in this appeal that significant new evidence has arisen in this appeal. Therefore paragraph (c) of clause 12 does not apply. As to whether the decision being appealed was not fair and equitable or against the weight of evidence, guidance is also given in the decision of Collins v Urban. In that case the Appeal Panel stated at [77] – [79]: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1. If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - `Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2. The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. . . . 1. We note that the appellant did not appear at the hearing, although a note on the Tribunal file states that Mr Winn attended the hearing room after the hearing had been completed. Mr Winn explained to the Appeal Panel during the course of the appeal hearing that he had mistaken the time that the hearing of the matter was to commence. Accordingly, and in light of the principles expressed above, we asked him to explain what he would have told the Tribunal below if he had attended the hearing. Mr Winn accepted that the report prepared by Trial Bay Electronics was before the Tribunal. He told the Appeal Panel that the Tribunal failed to give sufficient weight to the report. He drew our attention to the statement that a diagnosis of the problem had been made in the workshop as "impact damage by external force", and the fact that the appellant's contacts at LG (the manufacturer of the television), whom Mr Winn described as "the experts", had also said that the problem was not a manufacturing fault. 2. This is a consumer claim made by the appellant. She bears the burden of proving, on the balance of probabilities, that the television screen was not of acceptable quality, as required by s. 54 of the Australian Consumer Law (see Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Her evidence was her own oral evidence and the photographic evidence that was before the Tribunal. The issue before the Tribunal whether the problem was caused by a manufacturing fault or was the result of impact damage by the respondent. 3. We do not consider that the hearing was conducted or decided in a manner which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. While the appellant was not presented at the hearing, the evidence it had lodged, including a report from Trial Bay Electronics, was before the Tribunal. While the report asserts that the damage was caused by impact, the report does not identify the basis for that opinion. For any expert report to be given any weight, it is necessary that sufficient criteria be stated in it to enable an evaluation of the conclusion: see Auchettl v Kirk [2015] NSWCATAP 6 at [25] and the cases there referred to. The report does not state, for example, the qualifications or length of experience of the person giving the opinion or the tests that were carried out by the author of the report to support that opinion. The report merely states that "we picked the TV up on the 7th March to look at in the workshop and a diagnosis was made as impact damage by external source". She then states she did seek further advice from her contacts at LG, "to be told that it's not a manufacturing fault", and therefore not covered by the warranty. 4. The Tribunal weighed the evidence and acted reasonably in preferring the evidence of the respondent: Collins v Urban at [77, (12)]). We are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 5. Leave to appeal is refused and the appeal otherwise dismissed. Decision 1. The Appeal Panel makes the following orders: 1. The application for 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: 07 May 2015