Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JCD Ideas Holdings Pty Ltd T/AS Cafeideas v Poole & Poole [2015] NSWCATAP 122 Hearing dates: 15 June 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member K Rosser, Senior Member Decision: 1. Appeal allowed 2. Matter remitted to the Tribunal as originally constituted for the provision of adequate reasons within the meaning of s.62 of the Civil and Administrative Tribunal Act, 2013 and otherwise according to law. Catchwords: APPEAL: Adequacy of reasons-duty to give reasons Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 at [47 ]-[57] Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] Category: Principal judgment Parties: JCD Ideas Holdings Pty Ltd T/As Cafeideas – Appellant Penelope Poole and David Poole T/As Ferry Park Restaurant - Respondents Representation: Counsel: Mr K Papanicolaou, Solicitor for appellant Mrs P Poole - respondents Solicitors: PK Lawyers & Barristers – appellant Mr P O'Connor, MJO Legal – respondents (written submissions only) File Number(s): AP 15/14703 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 February 2015 Before: R Harris, Member File Number(s): GEN 14/55519 Reasons for decision Overview 1. This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) from the Consumer and Commercial Division of the Tribunal. The claim involved an application by Mr and Mrs Poole, the respondents to the appeal, in relation to rattan chairs used by them at the Ferry Park Restaurant in Maclean on the Clarence River in Northern New South Wales. 2. The appellant is the importer of the chairs. The chairs were manufactured in Italy. The respondents entered into a hire agreement for the chairs with Silver Chef Rentals Pty Ltd. 3. The respondents alleged that the chairs are defective. They claimed an order that the appellant fix or repair the chairs to the value of $8603. They alleged 72 chairs were defective. 4. By orders made 24 February 2015 the Tribunal ordered that the appellant, at its expense, pick up 111 Rattan Bistro chairs from the respondents and replace them at no cost to the respondents. 5. The appellant has appealed that decision. The primary ground of appeal is that the Tribunal failed to give adequate reasons for its decision. For the reasons below, we agree. In the circumstances, the appeal will be allowed and the matter remitted to the Tribunal so that it can prepare reasons for its decision as required by law. The Hearing Below 1. The Tribunal made the orders the subject of appeal following a hearing attended only by the respondents. The appellant did not attend the hearing. It had, however, served material on which it relied at the hearing. It is apparent that Mrs Poole, one of the respondents, gave oral evidence at the hearing. 2. When asked why the appellant did not appear at the hearing, Mr Papanicolaou, the solicitor who appeared for the appellant at the Appeal Panel hearing, said it was because of the "tyranny of distance". That was a reference to the fact that the hearing took place in Grafton. The appellant operates its business in Sydney. 3. We do not accept that the distance from the appellant's place of business to the place of hearing was such that it could not, if it had wished to do so, attend the hearing. Alternatively, it could have sought to participate in the hearing by telephone, as the respondents did for the appeal. It did not seek to do so. 4. We mention this issue because it became apparent during the hearing of the appeal, that the appellant was complaining that it did not have the opportunity to ask questions of Mrs Poole or raise other points with the Tribunal, such as the standing of the respondents to bring the proceedings. We do not accept that the appellant has legitimate grounds to make these complaints when it chose not to attend the hearing. Whilst this issue is not determinative of the appeal, it is relevant to the orders we propose to make. The Reasons of the Tribunal 1. The Tribunal's reasons in this case were brief. We can set them out in full: The Tribunal is satisfied that the respondent is on notice and that it is in the interests of justice that the matter proceed in the absence of the respondent, who has indicated they would not be attending and would be submitting written material which they have done. No application has been made for a phone hearing. The Tribunal is satisfied that the applicant is a consumer and the respondent is a supplier, that the applicants claim is a consumer claim within the meaning of the Consumer Claims Act and that the proceedings have been brought in time. The applicants claim is for the replacement of 111 faulty chairs supplied by the respondent to the applicant in March and June 2013. The respondent is the importer of the chairs which bare (sic) manufactured in Italy. The applicants were supplied the chairs after entering into a lease agreement with Silver Chef Rentals Pty Ltd. The Tribunal has considered the whole of the evidence both oral and documentary including the material submitted on behalf of the respondent by facsimile yesterday. The Tribunal prefers the evidence of the applicant in relation to the condition/quality of the chairs the subject of the claim. The Tribunal finds that the chairs supplied by the respondent were not of acceptable quality or fit for purpose in breach of the consumer guarantees under the Australian Consumer Law. The Tribunal finds that it would involve significant cost for the applicants to return the faulty chairs. The Tribunal will order the respondent at its expense to pick up the 11 (sic) faulty chairs from the applicants place of business and replace them within 21 days. 1. After the decision was published, the appellant requested written reasons pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013. By letter dated 27 February 2015, the appellant was informed that the reasons provided (as set out above) satisfied the requirements of that provision and that the Presiding Member advised that "no further reasons are available". We do not agree that the reasons above satisfied the statutory and common law requirement for the provision of adequate reasons. The Appeal 1. The appellant seeks to appeal from the decision of the Tribunal. It complains that the reasons provided do not comply with the duty of the Tribunal to provide adequate reasons. We do not need to set out the bases particularised in the Notice of Appeal. They all go to the failure to provide adequate reasons, save for one matter where the appellant complains about the reasons referring to 11 (sic 111) chairs rather than the 72 chairs referred to in the application. 2. As the appeal relates to the adequacy of the reasons given, it raises a question of law: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. As such, leave to appeal is not required: NCAT Act s 80(2)(b) 3. As noted above, the appellant was represented by Mr Papanicolaou, solicitor. The respondents appeared by telephone and Mrs Poole addressed the Appeal Panel on their behalf. 4. The appellant provided written submissions. On 12 June 2015, the respondents, through a Mr O'Connor, solicitor, also provided written submissions. The Duty to Provide Adequate Reasons 1. Section 62 of the NCAT Act relevantly states: (2) Any 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. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. There is, in addition, to s 62 a common law obligation to give reasons for a decision. This obligation was extensively discussed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [47 ]-[57]. The Appeal Panel said: 47 Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but the Tribunal may and in many cases does prepare and give reasons for decision, whether oral or written, without a request to do so from the parties, consistently with s 62(4). 48A provision such as s 62 of the Act does not, however, define exhaustively when there is a duty to give reasons or the extent of that duty. 49 One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. 1. The Appeal Panel cited the NSW Court of Appeal Decision in Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing) as follows: 50 The force of the authorities, which in various ways say that the judge or magistrate at first instance in particular cases ought to have given reasons, is that, as part of his judicial duty and apart from any express requirement of any statute, he ought to have given reasons for the decision in question. I think there is duty upon a judge or magistrate, at least at first instance, in an appropriate case and in appropriate circumstances to give reasons for decision such as will facilitate a litigant, who may be aggrieved, exercising rights he may have to appeal. In Carlson v King [(1947) 64 WN (NSW) 6] Jordan CJ in delivering the decision of the Full Court said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. [...]" The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judge of a court from which an appeal lies, whether or not a provision such as s. 144(3) [which in effect required a judge upon request to provide reasons] exists or not. 1. Whether considered in the context of the obligation under s 62 of the NCAT Act or in the context of the common law obligation to provide reasons, in our opinion the reasons given by the Tribunal in this matter were not adequate. They do not refer to any relevant material findings of fact, or the basis or bases on which the Tribunal concluded it preferred the evidence of the respondents to that of the appellant. The reasons do not expound the reasoning process by which the Tribunal reached its conclusions on questions of fact or law. On this basis, the appeal must be allowed. 2. Further, when the appellant requested written reasons in accordance with s 62(2) of the NCAT Act, it should have been apparent that the reasons given when the orders were made did not comply with that section. It was an error to refuse to provide written reasons which comply with that section and which set out the matters required by s 62(3). 3. During the hearing before the Appeal Panel, the appellant sought to argue matters that were not raised expressly in the material it provided to the Tribunal. These included whether the respondents had standing to bring the application, given that they lease the chairs from a finance provider. It also complained that it did not have the chance to ask Mrs Poole questions. As the appellant chose not to attend the hearing, these are problems of its own making. It also queried how the orders referred to 111 chairs when the application only referred to 72 chairs. In relation to this particular issue, it appears that the Tribunal allowed the respondents to amend the application at the hearing to seek orders in respect to the additional 39 chairs. The appellant was not notified of this. 4. Initially, the appellant sought orders that the matter be remitted to the Tribunal so that further argument could be made and additional evidence led. However, during the course of the appeal, Mr Papanicolaou accepted that there was nothing he could say against an order that the matter be remitted to the Tribunal as originally constituted so that adequate reasons can be given. We think this is the appropriate course. We do not think the appellant, having chosen not to attend the hearing, should now be allowed to attend a rehearing and lead additional evidence. 5. Of course, it can be expected that in providing its reasons, the Tribunal will deal with all relevant matters, including the respondents' standing to bring the application and the basis on which the application was amended without notice to the appellant. We do not seek to prescribe the matters that the Tribunal must deal with, however, at a minimum we would expect it would deal with these matters and make appropriate findings of fact with respect to the material before it. It should properly expose its reasoning in reaching conclusions of fact and law. 6. The orders we make are: 1. The Appeal is allowed 2. The matter is remitted to the Tribunal as originally constituted to provide a written statement of reasons in accordance with s 62(3) of the Civil and Administrative Tribunal Act 2013 and otherwise according to law. 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. 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