Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tsallas v Pererra [2016] NSWCATAP 211 Hearing dates: 6 September 2016 Date of orders: 16 September 2016 Decision date: 16 September 2016 Jurisdiction: Appeal Panel Before: K P O'Connor, AM, ADCJ, Deputy President, Appeals K Rosser, Senior Member Decision: (1) Leave to appeal is refused, (2) The appeal is otherwise dismissed.. Catchwords: APPEAL – Absence of official record of Tribunal decision – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Peter Tsallas (Appellant) Nina Pererra (Respondent) Representation: Peter Tsallas (Appellant in person) Nina Pererra (Respondent in person) File Number(s): AP 16/31385 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 28 June 2016 Before: T Simon, Member File Number(s): GEN 16/18691 REASONS FOR DECISION Introduction 1. This appeal is against an order by the Consumer and Commercial Division of the Tribunal (the Tribunal) dismissing the appellant's claim against the respondent. The appellant had sought a full refund of the amount paid by him, $1737, under a contract for the provision of services with the respondent. 2. The Tribunal gave an oral decision after its hearing on 28 June 2016. The appellant's notice of appeal does not include any record of the reasons for decision, either in the form of a transcript, or in the form of CD or as a result of a request for written reasons to be provided. Nor were they subsequently provided. Therefore, we have no official record of the Tribunal's reasons. 3. What we did have at our hearing of the appeal, on 6 September 2016, were notes of the member's reasons provided by the respondent, which she said she had taken at the hearing. From those notes, and the account given at our hearing by the parties of their dealings, we have derived the following understanding of the matter. Background 1. The appellant organises fundraising events that involve celebrities providing items for auction on-line. On this occasion he was involved in organising an event of that kind for a charity, Bully Zero Australia Foundation. 2. The respondent has a business, Neon Model Management, which helps in the promotion of events by engaging people with a large number of followers on social media to promote those events (we will call them 'promoters'). On this occasion, the appellant and the respondent agreed on a list of well-known people who would promote the event via Instagram and mention it in posts read by their followers. They were to inform their followers of the various items provided by celebrities, some of whom were internationally famous, for the on-line auction and in particular inform them of the top item, which was the display of a message at Times Square in New York. The promoters were to inform their followers of the opportunity to see the items at the appellant's premises in Pitt Street, Sydney and the time and date for that to occur. 3. The respondent says that she was pleased to assist the appellant, because of the event's charitable purpose, and therefore halved her usual rate. 4. The display date at the premises in Pitt Street was set for 19 March 2016. The on-line promotion and the commencement of bidding needed to be underway by then. The breakdown in the parties' relationship related to management of the text of the message to be sent by the promoters to their followers. 5. On 15 March 2016 the appellant supplied the respondent with a text which she accepted. She on-forwarded it to the promoters. The next morning, the appellant supplied an amended text. The amendment referred to his business, Celebrity Bidding, and the on-line site in its name to which auction bids were to be directed. The respondent said that she struck difficulty with her promoters over the amended text. She explained at hearing that there was resistance from some of them over lending their name to a charity event which had an apparently commercial organiser, who might be profiting from the promotion. She said that she had thought, and so had her promoters, that this was an event being solely organised for the benefit of Bully Zero. 6. The appellant disputed the respondent's understanding of the nature of their agreement. He depicted it as one where she had agreed to take any relevant text he submitted and to distribute that to her promoters. He saw it as obvious and fundamental to his agreement with the respondent that the message that she distribute have a clear on-line address for the bidding site. He pressed the view that the respondent had known from the outset that this was an on-line auction event. The appellant did not consider that the contract could be regarded as fulfilled by sending out a text that did not include that information. He was unclear as to whether he had informed the respondent from the outset of the involvement of his business, Celebrity Bidding, in the event. Statutory framework 1. The decision is appealable on any question of law or with the leave of the Appeal Panel on any other ground: Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2)(b) of the NCAT Act. In the case of appeals from the Consumer and Commercial Division, specific criteria govern the grant of leave. Clause 12 of Sch 4 to the NCAT Act provides, relevantly: 12 Limitations on internal appeals against Division decisions (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: … (b) the decision of the Tribunal under appeal was against the weight of evidence, or … 1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel concluded that the term 'a substantial miscarriage of justice' in the context of cl 12 of Sch 4 to the NCAT Act means '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': at [71]. 2. The Appeal Panel went on at [77] to consider the meaning of the phrase 'against the weight of evidence' in cl 12(b) of Sch 4: 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 (citations omitted). Notice of appeal 1. In the notice of appeal the appellant made detailed submissions as to why the member erred in the order that was made. The first set of submissions was presented under the heading 'questions of law'. However, these submissions did not address the distinction between questions of law and other grounds. The second set of submissions referred to the leave criteria found in cl 12. The notice attached a 50 page bundle, being the chain of emails that passed between the appellant and respondent in the period 17 February 2016 to 29 March 2016. 2. In essence, the appellant claims that the decision was not fair and equitable because 'it was not based on evidence and law but [on] an assumption based on statements made by the respondent'. The appellant also claims that the decision was against the weight of evidence. He claims that his evidence clearly supported his case. Consideration 1. We have given an account of the way the parties depicted their dealings, and taken some heed in that regard of the personal notes taken by the respondent of what the Tribunal is said to have stated at first hearing. 2. As noted above, the Tribunal's reasons for decision were delivered orally. It will be seen from our outline of the dispute that, in the process of delivering oral reasons for decision, various findings of fact would need to have been made by the Tribunal, as there were factual matters in dispute. It would also have been necessary for the applicable principles of contract law to be identified, and for the Tribunal to apply the law to the facts as found. The appellant had an opportunity to provide the Tribunal's reasons for decision to the Appeal Panel. The appeal was listed for callover on 28 July 2016. On that date, directions were made on for the preparation of the appeal. Relevantly, the appellant was directed to lodge with the Tribunal and provide to the respondent by 18 August 2016: …. (d) The sound recording of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on, together with a typed transcript of those parts of the sound recording on which the Appellant wishes to rely. 1. The appellant did not comply with this direction. The appellant's failure to provide a record of what occurred before the Tribunal means that we are unable to be satisfied that the Tribunal made an error of law in determining that the application should be dismissed. For the same reason, we are not satisfied that the appellant has established that he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or against the weight of evidence. 2. We have therefore refused leave to appeal and otherwise dismissed the appeal. Order 1. Leave to appeal is refused, 2. The appeal is otherwise 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: 16 September 2016