Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bonnici v KVSI Management Pty Ltd [2015] NSWCATAP 282 Hearing dates: 2 November 2015 Date of orders: 23 December 2015 Decision date: 23 December 2015 Jurisdiction: Appeal Panel Before: John Harris SC, Senior Member T Simon, Senior Member Decision: The Appeal is dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: David Bonnici (Appellant) KVSI Management Pty Ltd t/as Kennards Self Storage Waterloo Representation: Appellant in Person T Vuong for the respondent File Number(s): AP 15/45813 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Decision Citation: [2015] NSWCAT Date of Decision: 15 July 2015 Before: S DeJersey, General Member File Number(s): 15/29774 Reasons for the Decision 1. Oral reasons were initially provided at the hearing of this matter and these written reasons have been provided after a request for written reasons was made by the appellant. 2. It is also noted that during the giving of our oral reasons at hearing, the Appeal Panel were made aware by a technician that the sound recording had not been working throughout the Appeal hearing. The matter was subsequently transferred to another room where the reasons for decision were given. Accordingly no transcript will be available of the actual hearing. 3. The appeal was lodged on 31 July 2015. It relates to a decision made by the Tribunal on 15 July 2015 dismissing the appellant's application. The initial application was a claim for compensation for $7,000.00 for replacement of personal items including CDs, books, photographs and a blue-ray player and sound system. The applicant had lodged his personal belongings with the respondent for storage and there had been a signed contract, including conditions between the parties dated 19 February 2015. The goods appear to have become water damaged after strong storms in April 2015. 4. An appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c). The appeal has been filed within time. Leave to Appeal 1. The appellant is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing on other grounds: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 80(2)(b). The appellant did not identify any error of law. 2. In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in Schedule 4, cl 12 to the NCAT Act: (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: (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. The Appeal Panel case of Collins v Urban [2014] NSWCATAP 17 highlights that Clause 12 only requires that the appellant "may" have suffered such a miscarriage and at para 76 it states: Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. The decision in Collins v Urban identifies that even if the requirements of cl 12 Schedule 4 to the NCAT Act are satisfied, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). At paragraph 84 the decision outlines the general principles to be applied in deciding the discretion: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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. The appellant seeks leave to appeal and the Appeal Panel has considered each ground of appeal raised by the applicant in light of cl 12 and s 80(2)(b) of the NCAT Act. Ground 1 1. The appellant made submissions that the Member's decision was against the weight of evidence because the member did not properly identify the breach by the respondent. He claims that the broken window was a matter of negligence and that the respondent had failed to rectify or recognise the broken window prior to letting the area for the appellant. 2. It appears from the reasons that the Member has considered both parties' submissions in relation to the broken window and has found that the appellant did not establish any negligence. The Member states: There is a broken window in the storeroom which the applicant says was broken when he hired the room - the respondent says it was not broken. This seems to be the only place the water could have got in but the window is an internal window and there is no open roof space above the storeroom. 1. Clearly, the Member considered both parties' positions in relation to the broken window. The Member continued and made findings that: On the evidence of the hearing the applicant has not been able to prove on the balance of probabilities that the cause of the water leakage or a lack of maintenance by the respondent was the cause of the water leakage or a lack of maintenance by the respondent to its building. 1. Clearly the Member has considered the evidence in relation to negligence and breach that was raised by the appellant and has made findings that the appellant did not established negligence or breach. 2. Having considered those findings we are not satisfied that the decision was against the weight of evidence or that there has been a substantial miscarriage of justice. Ground 2 1. Leave was granted for the applicant to appear by telephone at the initial hearing. The appellant made submissions that the decision was not fair and equitable because the telephone hearing was inadequate. He stated that the telephone line was not clear in the initial proceedings and that the Member had failed to properly hear him. The appellant also states that he had failed to properly hear the respondent and that the Member had to repeatedly ask the respondent to speak up. 2. When asked by the Appeal Panel, the appellant was not able to demonstrate to the Appeal Panel any submission that he made which was not considered by the Member. He could not identify any misunderstanding or confusion that resulted from the telephone hearing or any parts of the respondent's evidence which he had not properly heard or which he had not had an opportunity to address. 3. The Tribunal is required to ". . . take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings." NCAT Act, s 38(5)(c). It appears from the reasons that the Member has properly understood each party's submissions and evidence in coming to decision. 4. Having considered this ground, we are not able to identify any substantial miscarriage of justice arising from the fact that the hearing was by telephone. Ground 3 1. The appellant now seeks to rely on new evidence that was not provided at the hearing. The appellant was seeking to provide evidence of the items he had lost. The appellant stated that he had the evidence at the time, but had not been able to provide it because the matter was heard by telephone. It is clear that the evidence which the appellant now seeks to rely on was reasonably available at the time the proceedings under appeal were being dealt with: Schedule 4, cl 12 (1)(c) to the NCAT Act. 2. The applicant had elected to appear by telephone. He had not provided the evidence which he now seeks to rely on, even though it was reasonably available to him at the time. In any case, the evidence which he now seeks to rely on only goes to establishing what the appellant had lost. Given the appellant was not able to demonstrate any breach by the respondent's, that evidence would not have affected the outcome. Accordingly the Appeal Panel is not satisfied that the new evidence was not reasonable available at the time the proceedings were being dealt with and there has been a substantial miscarriage of justice in that regard. 3. Accordingly, given the lack of merit in the grounds of appeal, we do not grant the appellant leave to appeal and 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: 23 December 2015