Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zey v Bunnings Group Ltd [2016] NSWCATAP 72 Hearing dates: 11 February 2016 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Appeal Panel Before: M Dicker SC, Senior Member K Rosser, Senior Member Decision: 1. The appeal is dismissed. 2. Leave to appeal is refused. Catchwords: APPEAL – Consumer Claim – Australian Consumer Law – Fit for disclosed purpose – Weight of evidence - Whether question of law established – leave to appeal Legislation Cited: Civil and Administrative Act 2013 Consumer Claims Act 1998 Fair Trading Act 1999 Australian Consumer Law Cases Cited: Herbert v American Express Australia Ltd [2016] NSWCATAP 47 Jenkinson v Chaw [2015] NSWCATAP 127 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Eedra Zey – Appellant Bunnings Group Ltd t/as Bunnings Warehouse Representation: Appellant - self- represented Respondent – Mr Martindale File Number(s): AP 15/50747 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 5 August 2015 Before: M Gilson, General Member File Number(s): GEN15/05133 Reasons for decision Introduction 1. Ms Eedra Zey (the Appellant) appeals against a decision made on 5 August 2015 in the Consumer and Commercial Division of the Tribunal, which dismissed her application GEN15/05133. 2. There are no written reasons for decision in relation to the proceedings below. The Member delivered the reasons for that decision orally on 5 August 2015. Although the Appellant applied for and was provided with a copy of the sound recording of the hearing, the Appellant did not provide a transcribed copy of the reasons for decision to the Appeal Panel. 3. On 15 November 2015 the Appellant applied for written reasons for the Tribunal's decision. This application was refused on 3 December 2015 as the applicant did not make it within 28 days of being given notice of the decision: s 62(2), Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 4. The Appeal Panel has, however, listened to the sound recording of the reasons for decision. 5. For the reasons set out below, we have decided that leave to appeal should be refused and the appeal should be dismissed. Background 1. On 19 November 2014 the Appellant purchased from either the Taree or Foster stores of Bunnings Group Limited t/as Bunnings Warehouse (the Respondent), the following goods: * An Accent HAG9 internal door manufactured by Hume Doors for $54; and * Two Everdure induction cooktops model CBIE63 for $650 each. 1. The goods were primarily to be used in a house renovation, which the Appellant was undertaking at Gloucester in New South Wales. 2. The Appellant had, prior to purchase of the goods, seen an advertisement for the door in a Bunnings Warehouse brochure. The advertisement indicated that the door had "pre primed faces ready for painting". The Appellant, believing that this description meant that the door only required topcoats of paint, instructed one of her labourers to undertake that painting procedure. Even though two topcoats of paint were applied, the surface of the door was still visible. It required extensive repainting. 3. In relation to the cooktops, one was installed in the house that was being renovated. The Appellant looked at the cooktop manual which came with the cooktops and noticed that it stated the following: "Do not operate the cooktop without first placing a suitably sized cooking vessel containing food on the appropriate cooking zone". The Appellant placed a saucepan containing food on one of the cooking zones of the cooktop but the cooktop indicated an error and would not operate to heat the saucepan. 4. The cooktops purchased were induction cooktops that could only be used with certain types of cookware. The Appellant was not aware of this at the time of purchase and claimed that the cooktops were not suitable for the purpose disclosed by her and did not meet the description pursuant to which they were sold. The claim at first instance 1. The Appellant filed a claim in the Consumer and Commercial Division of the Tribunal on 2 February 2015. The Appellant claimed the sum of $4,300, which included claims for consequential loss. By the time the matter came on for hearing the claim had increased to $5,683. 2. The Appellant claimed that the Respondent retailer: * Had engaged in misleading or deceptive conduct in breach of section 18 of the Australian Consumer Law, being the Second Schedule to the Competition and Consumer Act 2010 (Cth) (ACL Cth); * Had breached the guarantee in section 55 of the ACL that the goods would be reasonably fit for their disclosed purpose; and * Had breached the guarantee in section 56 of the ACL that the goods purchased would correspond with the description given to them. 1. In relation to the door, the Appellant submitted that the door did not have pre primed faces ready for painting and in relation to the cooktops the Appellant submitted that they did not comply with the content of the cooktop manual. 2. The Respondent made the following submissions in response: * The term "pre primed faces ready for painting" was consistent with requiring both undercoats and topcoats of paint and therefore there was no misleading or deceptive conduct and the door was fit for its purpose and matched its description; and * The cooktops were sold as induction cooktops that required different cooking saucepans. The Respondent referred to the manual for the cooktops which was in evidence and which contained the following: "All cookware used on this appliance should be rated for induction cooking by the manufacturer". Decision of the Tribunal at first instance 1. In his oral reasons for decision, the Member pointed out that the Appellant had used labourers for the painting of the door who were not professional painters and who likely were not as skilled as professional painters. The Member held that the door was ready for painting as represented, that the brochure did not indicate that the door did not require undercoats of paint and that the description was consistent with a painting system which required both undercoats and topcoats of paint. Therefore, the Member found that the door met its description, was fit for its purpose and there had been no misleading or deceptive conduct in relation to the door. 2. In relation to the cooktops, the Member referred to the fact that the boxes in which the cooktops were provided stated that the cooktops were "induction cooktops" and that the cooktops were fit for their purpose and matched that description if used with the correct cookware. The Member also rejected an allegation that there was misleading or deceptive conduct at the time of sale. In relation to this, the Member did not accept that a staff member of the Respondent told the Appellant that the cooktops were suitable for the Appellant's purposes. 3. Although the claims were made under the ACL Cth, it is clear that the claims made by the Appellant were consumer claims and that the Tribunal had jurisdiction to hear them under the Consumer Claims Act 1998 (NSW) (CCA) which has since been repealed by the Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW). Relevant provisions of the CCA were incorporated into the Fair Trading Act 1987 (NSW), the amendments to which commenced from 1 October 2015. Given that the application was lodged on 2 February 2015 and the decision was made on 5 August 2015, there can be no dispute that the former CCA applied at the relevant time. 4. The fact that the CCA was not expressly relied upon by the Appellant at first instance does not mean, in our view, that the Tribunal did not have jurisdiction to hear the claim as made. Applicable statutory provisions 1. Section 7(1) of the former CCA provided that the Tribunal has jurisdiction to hear and determine any consumer claims brought before it under the CCA. Further, the goods were supplied in New South Wales under a contract, which clearly contemplated that the goods would be supplied in New South Wales. Section 3A(1) of the CCA provided as follows: (1) For the purposes of this Act, a consumer claim is: (a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)–(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services." 1. "Consumer" was defined in s 3 of the CCA as: (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996 , or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee), to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. 1. Section 8(1) of the CCA relevantly provided that, in determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may make one or more of the following orders as it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, ................ (d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent. 1. Section 8(2) provided that in determining a consumer claim wholly or partly in favour of a respondent to the claim, the Tribunal may, relevant to this case, make one or more of the following orders as it considers appropriate: (a) an order dismissing the claim or a part of the claim, (b) an order that requires the claimant to pay to the respondent a specified amount of money. 1. Section 13(1) of the CCA provided: When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim. 1. For the Tribunal to have jurisdiction to make orders under section 8 of the CCA, there must be a "consumer claim" within the former CCA. Once that is satisfied and the Tribunal has jurisdiction, it may make orders for or against the parties to the consumer claim. 2. The Appellant was clearly a "consumer" under the CCA and the claims in the present case were "consumer claims" under the CCA. They were "consumer claims" within the definition in s 3A of the CCA because they arose from a supply of goods (the door and the cooktops) by a supplier (the Respondent) to a consumer (the Appellant). 3. However, the causes of action relied upon at first instance were not under the former CCA but under the ACL Cth. As stated in Herbert v American Express Australia Ltd [2016] NSWCATAP 47 at [24], "a distinction needs to be kept in mind between" the ACL Cth and the Australian Consumer Law as a law of New South Wales (ACL NSW). 4. In relation to the ACL Cth, under s 138 and s 138B of the Competition and Consumer Act 2010 (Cth), Commonwealth jurisdiction is conferred upon the Federal Court (s 138) and the "several courts of the States and Territories" (s 138B). Such a conferral of jurisdiction on "courts" does not include a conferral of jurisdiction on this Tribunal: see Herbert, above, at [46(11)] and the cases there cited. 5. However, the claims made by the Appellant under ss 18, 55 and 56 of the ACL Cth could equally have been made under the ACL NSW. Under section 28 of the Fair Trading Act 1987 (NSW) (FTA), the ACL text in the ACL Cth as in force from time to time applies as a law of New South Wales. 6. In relation to claims under the ACL NSW, the jurisdiction of the Tribunal to consider them depends on whether they are "consumer claims" under s 3A of the former CCA or the claims fall within the terms of s 74(3) of the FTA as being matters which arise "in connection with another matter the subject of proceedings in the Tribunal": see also Herbert, above at [47(12)] and Jenkinson v Chaw [2015] NSWCATAP 127 at [31]-[71]. In our view, for the reasons given above at least the former basis for jurisdiction is satisfied in the present case. 7. Section 18(1) of the ACL NSW provides: (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 1. Section 55 of the ACL NSW provides as follows: Guarantee as to fitness for any disclosed purpose etc (1) If: (a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). (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, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be. 1. Section 56 of the ACL NSW provides as follows: Guarantee relating to the supply of goods by description (1) If: (a) a person supplies, in trade or commerce, goods by description to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods correspond with the description. (2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer. (3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply. The Appeal 1. On 1 September 2015, the Appellant lodged her Notice of Appeal against the order made on 5 August 2015. This was within the 28 day appeal period established by Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. Scope and nature of the appeal 1. A party may appeal against an "internally appealable decision" of the Tribunal as of right on any question of law, or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the NCAT Act. It is not in dispute that the Tribunal's decision is an internally appealable decision. 2. Where, as in this case, the decision under appeal is a decision of the Consumer and Commercial Division of the Tribunal, the Appeal Panel may only grant leave to appeal where the appellant may have suffered a "substantial miscarriage of justice" because the decision under appeal was not fair and equitable, was against the weight of evidence, or significant new evidence has arisen: cl 12(1) of Schedule 4 to the NCAT Act. Grounds of appeal 1. The grounds of appeal set out in the Notice of Appeal are as follows: 1. "There is my complaint lodged against the Member that was not considered as the matter was part heard. The complaint is still live"; 2. "The Tribunal erred in law through failing to provide adequate reasons with regard to its finding as I have received no reasons so therefore cannot make a more specific ground of appeal"; 3. "The Member went about a fact finding process 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. In particular, but not limited to, his conviction on methods of painting and his disregard for the documented evidence by such prominent companies such as Hardies as to what "pre primed" means and his conviction that a consequential loss cannot be some unknown factor above the cost of a product. More detail on this is in my complaint referred to in 1"; 4. "The decision of the Tribunal was against the weight of evidence". 1. In relation to the first ground of appeal, the Appellant from her Notice of Appeal appears to assert that the Member at first instance was biased. 2. In relation to the second ground of appeal, the Appellant complains that she was not provided with reasons for the decision at first instance. 3. In relation to the third ground of appeal, the Appellant complained in her submissions on appeal that the Member seemed to require a painter to have a specialist painting qualification whereas unqualified persons experienced in painting would be equally suitable to engage in painting the door in question. 4. Both parties filed written submissions and also made oral submissions on the appeal. The Appellant's submissions 1. In relation to the door issue, the Appellant submitted that the Member erroneously concluded that the door was fit for purpose and complied with the description in the brochure which stated that the door had "pre primed faces ready for painting". The Appellant said that this indicated that the door could be painted simply with topcoats of paint and without undercoats. 2. In relation to the cooktop issue, the Appellant submitted that the Member at first instance focused on alleged representations by the Respondent retailer instead of focusing on the brochure supplied with the cooktop which said that it could be operated with "a suitably sized cooking vessel containing food on the appropriate cooking zone". 3. Whilst the Appellant accepted that she bought the cooktops in boxes which had "induction cooktop" printed on them, she submitted that it was not a matter of general knowledge that an induction cooktop needed to use special cookware. 4. The Appellant stated that she had not seen in the manual the following statement: "All cookware should be rated by the manufacturer as ready for induction cooking". The Appellant accepted that the instruction manual was in the box when it was purchased. The Respondent's submissions 1. In relation to the door, the Respondent submitted that it had "pre primed faces ready for painting". Painting required both undercoats and topcoats of paint. The Respondent also referred to a sticker, which it said was on all Hume doors sold, which stated: "After fitting and prior to hanging, ENTIRE DOOR including top and bottom rails MUST be properly sealed and painted. Two (2) coats sealer/undercoat then finishing coats – semi gloss recommended. Avoid dark colours for external doors – refer Guarantee". 2. The Appellant disputed that this sticker was on the door when it was purchased but in any case said there was a contradiction between the Respondent's brochure and the sticker. The Member at first instance did not make a finding as to whether the sticker was on the door at the time of purchase. 3. In relation to the cooktops, the Respondent relied upon the statement in the manual that all cookware used on the cooktop "should be rated by the manufacturer as ready for induction cooking". Consideration of the grounds of appeal Ground of Appeal 1 1. The Appeal Panel does not have general jurisdiction to hear complaints against Members. That said, if the Appellant's complaint about the Member established that the Member was biased, that would constitute a question of law for which leave to appeal is not required. 2. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ stated as follows: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 1. At paragraph [33] their Honours stated as follows: The common law in both England and Australia in relation to this subject has come a long way since the middle of the nineteenth century. In Australia, the common law has developed along lines somewhat different from the development in England. In this country, an issue such as that which arose in Pinochet (No 2) would be resolved by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance. 1. The Appellant did not clearly articulate the bias relied upon. However, we could find no evidence of bias, either actual bias or apprehension of bias, in the conduct of the Member at first instance. In our view, having listened to the reasons for decision, a fair minded lay observer would not reasonably apprehend that the Member at first instance might not have brought an impartial mind to the resolution of the questions before him, given the findings made, the reasons for those findings and the evidence provided by the parties. 2. We reject this ground of appeal. Ground of Appeal 2 1. This ground of appeal should be rejected, as neither a question of law nor one of the leave to appeal grounds has been established. The Appellant requested written reasons for decision out of time and did not seek to have the statutory time period extended. Furthermore, the Appellant was provided with an audio copy of the Member's reasons for decision. In these circumstances, there is no error in the Appellant not being given written reasons for decision. Ground of Appeal 3 1. We have listened carefully to the reasons for decision of the Member at first instance. In view of the findings made by the Member, the evidence before him and the reasons the Member gave for his decision, we can discern no basis for the allegation that the Member went about his fact finding process in a way that was likely to produce an unfair result. 2. In relation to the door, in our view, the fact that labourers undertook the painting task of the door rather than qualified painters was a relevant matter for the Tribunal to consider. It is likely that qualified painters would have ascertained from an inspection of the door what painting was properly required for the door. 3. The Member focused on the statement in the brochure that stated that the door had "pre primed faces ready for painting". In our view, this statement is consistent with requiring both undercoats and topcoats of paint. The wording is not misleading or deceptive. There is no evidence the door did not meet any purpose disclosed by the Appellant or any description pursuant to which the Respondent supplied the door. 4. In relation to the cooktops, while the Member did focus on an alleged misrepresentation made by the retailer at the time the Appellant purchased the cooktops, an analysis of the instruction manual provided with the cooktops (extracts of which were provided by both parties to the Tribunal below) demonstrates that the manual states that the cookware used on the induction cooktop had to be rated for induction cooking by the manufacturer. 5. We can see no incorrect fact finding process that was likely to produce an unfair result or which did produce an unfair result. We accordingly reject this ground of appeal. Ground of Appeal 4 1. The last ground of appeal asserts that the decision of the Tribunal was against the weight of evidence. This does not raise a question of law. Under section 80(2) of the NCAT Act, the Appellant is only entitled to raise this ground of appeal with the leave of the Appeal Panel. 2. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel stated as follows: 84. The general principles derived from these cases can be summarised as follows: (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. In our view the decision of the Tribunal at first instance was not against the weight of the evidence. 2. In relation to the door, the evidence established that the door met the description of having "pre-primed faces ready for painting" in that undercoats and topcoats of paint were required. 3. In relation to the cooktops, the evidence established that the cooktops were purchased in boxes which had printed on them "induction cooktop". Further, the manual inside the box made clear that the cookware used on the cooktops had to be rated for induction cooking by the manufacturer. 4. In our opinion, the findings of the Tribunal were open to it and clearly in accordance with the preponderance of the evidence. 5. In any event, the issues involved in the appeal do not appear to us to be issues of principle or involve questions of public importance or matters of administration or policy that might have general application. In our view there is no apparent injustice in the decision at first instance. Nor did the Tribunal at first instance engage in an incorrect fact finding process that was likely to produce an unfair result. 6. In these circumstances, even if the Appellant had established one of the grounds for leave to appeal set out in cl 12(1) of Schedule 4 to the NCAT Act, we would have refused leave to appeal. Conclusion 1. As we are not satisfied that the Appellant has established any of the grounds of appeal, we have made the following orders: 1. The appeal is dismissed. 2. The application for leave to appeal is refused. ********** 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: 31 March 2016