Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baxter v Telgate Pty Ltd [2017] NSWCATAP 17 Hearing dates: 9 January 2017 Date of orders: 27 January 2017 Decision date: 27 January 2017 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D Charles, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL – consumer claim – defects in appearance and finish of bed furniture - finding of no major failure under ACL NSW - whether question of law – procedural fairness – bias - no error of law – leave to appeal – whether substantial miscarriage of justice – leave refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Competition and Consumer Act 2010 (Cth) The Australian Consumer Law 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Category: Principal judgment Parties: Allen Baxter (Appellant) Telgate Pty Ltd trading as Forty Winks Erina & West Gosford (Respondent) Representation: Mr A Baxter, appellant in person Ms H Hines for respondent File Number(s): AP 16/43992 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 09 September 2016 Before: J Ringrose, General Member File Number(s): GEN 16/29088 REASONS FOR DECISION Introduction 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Civil and Administrative Tribunal (the Tribunal) on 9 September 2016. The Tribunal made its decision in respect of a consumer claim made by the appellant (Mr Baxter) under the Fair Trading Act 1987 (NSW). 2. The appellant's Notice of Appeal was filed on 4 October 2016, within 28 days of the Tribunal's decision and therefore was filed within time. 3. The consumer claim related to a Monet bedroom suite, consisting of one Queen-size bed with bedhead and two matching bedside tables, together with an English Oak dresser, a Crown Jewell Queen Chantilly Mattress, and a mattress protector (hereinafter collectively referred to as "goods"). Mr Baxter ordered the goods from the West Gosford retail outlet of the respondent. The respondent's Tax Invoice dated 25 February 2016 referred to a package price for the goods of $10,000.00 including delivery (within 6 – 10 weeks). Installation was not included. 4. Mr Baxter paid a deposit of $2,000.00 on 25 February 2016 and the balance ($8,000.00) was paid on 13 May 2016. 5. The goods were delivered to Mr Baxter's Woy Woy NSW residence on 14 May 2016. 6. On or about 14 June 2016 Mr Baxter filed application GEN 16/29088 in the Tribunal seeking an order for a full refund ($10,000.00) and the return of the goods. Mr Baxter complained that the bed suite and dresser were not of acceptable quality. There was no argument that the goods delivered to Mr Baxter were unfit for purpose. 7. Mr Baxter relied on photographs upon which he had placed yellow tabs and arrows. In particular, Mr Baxter alleged that that the bed suite and dresser were not acceptable in appearance and finish; that they were dusty and dirty, had an unevenness of colour and were raw (i.e. no staining) in parts. Mr Baxter further relied on the photographs to depict other defects such as bent rail brackets, a broken screw in the bed rail end, and the presence of staples and plastic screws glued to the furniture and also large holes. Tribunal's Decision 1. The Tribunal's order was stated in the following terms: "The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. The evidence provided by the applicant failed to establish that the goods were not of acceptable quality within the meaning of clause 54 of (the) Australian Consumer Law under (the) Competition and Consumer Act 2010 and further failed to show that he was entitled to return the goods and obtain a refund". 1. The Tribunal delivered oral reasons for the order. The essential findings of the Tribunal's Decision may be summarised as follows: 1. The Australian Consumer Law 2010 being Schedule 2 of the Competition and Consumer Act 2010 (Cth), and adopted in New South Wales on 1 January 2011 pursuant to s 28 of the Fair Trading Act 1987 (hereinafter referred to as "ACL NSW"), applied to the facts of the application, because the goods were of a kind ordinarily acquired for personal domestic or household use or consumption in an amount which did not exceed $40,000.00; 2. As there was no evidence that the mattress and the mattress protector were defective (in fact the mattress was delivered securely wrapped), Mr Baxter's case for relief under the ACL NSW applied to the bed suite and dresser only (valued at approximately $5,000.00); 3. Mr Baxter's evidence (essentially, photographs of the goods after delivery) concerned whether there had been compliance with the consumer guarantees of the ACL NSW and specifically whether the bed suite and the dresser were of "acceptable quality" within the meaning of s 54 of the ACL NSW; 4. While the photographs relied upon by Mr Baxter depicted some defects (e.g. bent brackets) and some unacceptable finish (e.g. staples and plastic screws glued to the furniture) the evidence did not support a finding of a "major failure" as defined in s 260 of the ACL NSW; 5. To the extent that the goods had defects and had unacceptable finishes, this was capable of remedy (i.e. in order to bring the goods up to an acceptable quality) by way of rectification or replacement, rather than by way of a full refund (see s 259 of the ACL NSW); and 6. As the respondent had offered to rectify and/or replace the bed suite and dresser, Mr Baxter's claim for a full refund of $10,000.00 must fail. Grounds of Appeal 1. The appellant has a right of appeal on a question of law and otherwise requires leave of the Appeal Panel. The Appeal Panel may only grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice: see s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), and Sch4 cl 12 of the NCAT Act. The principles applicable to the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17. 2. In his Notice of Appeal Mr Baxter ticked the box "No" indicating that he was not seeking leave to appeal, however he went on to address the issues of whether the decision was not fair and equitable, or was against the weight of evidence. The Appeal Panel recognises that it may be difficult for a self-represented appellant such as Mr Baxter to clearly express his grounds of appeal. Nevertheless, the Appeal Panel must give effect to the guiding principle when exercising functions under the NCAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is further reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." It is therefore appropriate for the Appeal Panel to review the appellant's stated grounds of appeal, the written material provided by the parties, and the decision of the Tribunal at first instance in order to examine whether it is possible to discern grounds that may raise a question of law or a basis for leave to appeal. 3. Consistent with s80(2)(b) of the NCAT Act, and Sch4 cl 12 of the NCAT Act, the Appeal Panel may only give permission for an appeal on grounds other than a question of law to go ahead if it is satisfied Mr Baxter 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 3. 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 meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71] … [I]t can be seen 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. … [79] 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. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. In summary, Mr Baxter's grounds of appeal on questions other than law were that: 1. The decision made on 9 September 2016 was not "fair and equitable" because Mr Baxter's photographs of the goods delivered to him on 14 May 2016 were not considered properly, or at all, by the Tribunal Member; 2. The hearing of the appellant's application was conducted and then decided on the basis of a one sided approach by the Tribunal Member in that the Member did not "focus on the other party"; and 3. The decision was against the weight of evidence because the Tribunal did not take into account the clear evidence provided by him including photographs, receipts, Fair Trading correspondence, his application, and the Fair Trading general complaint form. 1. The respondent opposed the appeal. In summary, it responded as follows: 1. The evidence established no "major" failure within the meaning of the ACL NSW; 2. In the circumstances, the respondent was entitled to repair or replace any defects in the bed suite and dresser or otherwise attend to any aspects of the bed suite and dresser which were not acceptable in appearance and finish; 3. Replacement brackets could be provided if the brackets were bent; 4. Any unevenness of colour in the goods delivered to Mr Baxter could not be categorised as a defect or not acceptable in appearance and finish because the respondent's products were stained to all areas in sight while the undersides and unseen parts of the bed suite and dresser were not stained, this being the common practice in the Australian furniture industry; 5. Mr Baxter refused to allow any rectification (whether repair or replacement of parts) and would accept nothing but a refund in full for all items in the goods' package including the mattress and the mattress protector; and 6. Accordingly; the decision of the Tribunal Member at first instance to decline Mr Baxter's request for a full refund should be confirmed by the Appeal Panel. Appeal on questions of law 1. There was no real contest about the Tribunal Member's identification of the relevant legal principles. Nor could we discern any error in either the identification of the relevant principles, or their application to the facts as found by the Tribunal Member. As a result of the operation of s 15 of the ACL NSW a failure to comply with a consumer guarantee is not taken to constitute a contravention of the ACL NSW. The remedial provisions of the ACL NSW applicable to a failure to comply with a consumer guarantee are found in Pt 5 – 4 of the ACL NSW ss 259 – 277, and whether or not the failure to comply is a "major" failure is one of the most important circumstances which determine what options a consumer has under s 259: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [73] – [79]. As noted in paragraph 9 above, the Tribunal Member addressed the relevant legal principles in his reasons for decision. 2. Our understanding of Mr Baxter's grounds of appeal on questions of law is that the Tribunal at first instance did not afford Mr Baxter procedural fairness because the Tribunal Member did not take into account Mr Baxter's evidence (specifically, the photographs of the goods after delivery upon which Mr Baxter had placed yellow tabs and arrows), and also that the Member was biased because the Member did not focus on the case of the other party. Procedural Fairness 1. It would be a breach of the NCAT Act and the general law rules of procedural fairness if the Tribunal did not ensure that Mr Baxter had "a reasonable opportunity to be heard or otherwise have (his) submissions considered in the proceedings": NCAT Act s 38(5)(c). 2. We have listened to the tape-recording of the proceedings which was also available to the parties. 3. Mr Baxter's main point about procedural fairness was that the Tribunal Member did not consider the appellant's photographs. We disagree. The hearing took almost two hours. That was sufficient time for the Tribunal to consider all of the evidence (including the photographs) in Mr Baxter's case. The Tribunal Member structured the hearing in a manner which ensured that Mr Baxter understood the nature of the proceedings, including the matters he had to prove under the ACL NSW to achieve the outcome of a full refund for the goods. Having listened to the recording, we are satisfied that the Tribunal Member adequately explained all aspects of the Tribunal's procedure relevant to the application and the Tribunal's decision-making process in accordance with the obligation imposed by s 38(5) of the NCAT Act. Mr Baxter was taken to the photographs and asked to respond to questions from the Tribunal Member as to defects and unacceptable finishes, to respond to the written submissions and supporting documents provided by the respondent, and to point to evidence and to make submissions in his application for a full refund. Mr Baxter was asked on more than one occasion whether there was anything else he wanted to say. 4. The Appeal Panel is satisfied that the Tribunal Member gave Mr Baxter an adequate opportunity to present his own case and to respond to the respondent's defence. Bias 1. Mr Baxter submitted that the Tribunal Member's approach during the hearing was one sided, in that the Member directed most questions to him and not to the respondent's representative, and also that the respondent's case was not subjected to the same scrutiny as the appellant's case. 2. Any allegation of actual bias must be distinctly made and clearly proved and a finding of actual bias, in the sense that the decision-maker's mind is closed to persuasion, is not made lightly: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16. Mr Baxter did not provide a statement or any other documentary evidence to support a submission of actual bias against the Tribunal Member. If such allegation is made by Mr Baxter, we are not satisfied that he has established actual bias. 3. We also have to consider whether there was apprehended bias. There will be reasonable apprehension of bias if a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. 4. The Appeal Panel is satisfied that the Tribunal Member directed his attention to the appellant's case and asked questions of Mr Baxter particularly as regards the photographs in order to make findings of fact and to reach conclusions in relation to the appellant's claim for a full refund of $10,000.00. As in any civil proceedings, applicants for orders of the Tribunal bear the legal onus of presenting sufficient evidence to satisfy the Tribunal, on the balance of probabilities, that the orders sought in the application must be made. 5. On several occasions the Tribunal Member told Mr Baxter that questions were directed to him so that Mr Baxter could have every opportunity to prove his claim. A fair-minded person in those circumstances would not apprehend that the Member was biased against Mr Baxter. 6. Nor is there apprehended bias if the Member does not call upon the respondent. The Appeal Panel is satisfied that the Tribunal Member allowed adequate time to hear Mr Baxter's evidence and then determined that Mr Baxter had not made out a case for the relief sought in the application. 7. We are not satisfied that the appellant has established apprehended bias. 8. There was no denial of procedural fairness. Mr Baxter's appeal on questions of law should be dismissed. Consideration of Leave to Appeal on "other grounds" 1. In order to consider granting leave, the Appeal Panel must be satisfied that Mr Baxter's application at first instance was not conducted or decided fairly and equitably; or alternatively, that it was decided against the preponderance of evidence. The Appeal Panel must then be satisfied that had those circumstances not existed, there was a significant possibility or a chance which was fairly open, that Mr Baxter may have been successful, at least in part. 2. For the reasons stated above in relation to procedural fairness and bias, the Appeal Panel is not persuaded that the proceedings at first instance were not conducted fairly or were not decided fairly or equitably. 3. Mr Baxter submitted that the Tribunal Member did not take into account all of his evidence (particularly the photographs) and also that that the Tribunal Member had regard to irrelevant considerations (e.g. comparing furniture with motor cars). From this submission it might be inferred that the decision at first instance was against the weight of evidence. Having listened to the tape of the proceedings at first instance, we are satisfied that the Tribunal Member considered all of Mr Baxter's submissions and evidence (including the photographs upon which he had placed the yellow tabs and arrows), before making necessary findings of fact and law as to whether or not there had been compliance with the consumer guarantee of "acceptable quality" and as to whether or not there had been a "major" failure within the meaning of the ACL NSW, and then determining the appropriate outcome of Mr Baxter's application. 4. In terms of Sch4, cl12 of the NCAT Act, the Appeal Panel is not satisfied that there was a substantial miscarriage of justice because the matter was not conducted or decided fairly or was decided against the preponderance of evidence. The prerequisites for granting leave are not met in this case. The Appeal Panel is therefore precluded from granting leave to appeal. Conclusion 1. Insofar as the Notice of Appeal raised a question of law, the appeal is dismissed. The determination of the Tribunal at first instance that the appellant, Mr Baxter, had not satisfied his burden was open on the evidence and the contentions that there was a denial of procedural fairness and that the Tribunal Member was biased are not made out. 2. For the reason that Sch4, cl12 of the NCAT Act is not satisfied, leave to appeal on any other ground is not granted. 3. The appeal should be dismissed and as a consequence, the orders made by the Tribunal on 9 September 2016 stand. 4. The orders of the Appeal Panel are: 1. 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: 29 May 2018