Henry v Management Business Services Pty Ltd t/as AA Affordable Flooring Services [2017] NSWCATAP 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Henry v Management Business Services Pty Ltd t/as AA Affordable Flooring Services [2017] NSWCATAP 55 Hearing dates: 2 February 2016 Date of orders: 09 March 2017 Decision date: 10 March 2017 Jurisdiction: Appeal Panel Before: J Harris SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to appeal is refused. 2. Appeal dismissed. Catchwords: Consumer claim; Principles for leave to appeal. Legislation Cited: Civil and Administrative Appeals Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Toni Henry (Appellant) Management Business Services Pty Ltd t/as AA Affordable Flooring Services (Respondent) Representation: Solicitors: In Person (Appellant) In Person (Respondent) File Number(s): AP 15/61079 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 October 2015 Before: C Paull, Senior Member File Number(s): GEN 15/45095

Reasons for decision 1. The appellant was the unsuccessful applicant in the Tribunal at first instance. She had lodged a consumer claim application complaining about the respondent's performance of an agreement that it remove existing carpets and supply and install "Sydney Blue Gum" timber flooring over an existing particle board floor in the appellant's dining room and sand and polish existing timber flooring in her hallway and apply a "Gloss Polyurethane" finish to that area. 2. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the 'Act') states: 'Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.' 1. The appellant's Notice of Appeal is expressed in detailed terms and in some respects may be described as argument or submissions rather than the notification of grounds of appeal. It does not appear to express a ground of appeal based upon an error of law. Rather, the grounds of appeal appear to be expressed as ones requiring leave. 2. The first issue raised as a ground of appeal refers to an aspect of the evidence which the Member below indicated in her reasons to have been particularly persuasive. The Member stated: "The applicant has provided no evidence to substantiate that the colour of the floor boards is not in accordance with the 'Blue Gum' specified in the quote she accepted." 1. The ground of appeal complains that the Member: "failed to record or acknowledge the Respondent's admission that he applied a red stain to all of the flooring including the Blue Gum, where the undisputed quote did not include the application of a coloured stain. A red coloured stain was applied without the consent of the Applicant and this was acknowledged by the Respondent." 1. The respondent in its reply does accept that stain was applied but states that that was done at the appellant's request after she determined that the colour contrast between the new Blue Gum flooring and the existing floor boards was too stark. She chose a colour, then after it was applied, decided it was "too red" and a "brownier" (sic) stain was applied. 2. Thus, the issue joined between the parties on the appeal involved a dispute on the evidence and the facts and the way that dispute was resolved by the Member at first instance. 3. The first point to be made about this ground is that on 26 November 2015, Deputy President Hennessy conducted a directions hearing and made directions for the conduct of the appeal. Amongst other directions, the Deputy President directed the appellant in the following terms: "The Appellant is to lodge with the Tribunal and provide to the Respondent the sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on." 1. No recording or transcript was lodged in accordance with the direction. 2. In the absence of a recording or transcript there is no material upon which we are able to base a conclusion that the Member at first instance failed to record an admission by the respondent that is conclusive of a factual issue contrary to the Member's finding. On the contrary, the respondent's reply, referred to above, suggests that the issue was the subject of dispute and that the dispute was more involved than merely whether a stain was applied. Without the transcript or recording we are unable to conclude that the Member overlooked an admission at the hearing especially where the issue is disputed in the respondent's reply. 3. The second point to be noted is that the process of an internal appeal to the Appeal Panel of the Tribunal is not merely an opportunity to have the decision at first instance subjected to a form of general review with an opportunity for parties to reconsider the forensic decisions that they made at first instance. To be successful, an appellant must bring the appeal within the statutory framework. 4. Subsection 80(2)(b) of the Act provides that an appeal on any ground other than a question of law shall be by leave. Clause 12(1) of Schedule 4 of the Act is headed 'Limitations on internal appeals against Division decisions'. The clause provides as follows: '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 statutory regime referred to above has been considered and explained by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. That is a decision with which we respectfully agree, but more importantly, by which we consider that we are bound in any event. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that she may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well established principle. 2. The relevant passage from Collins v Urban as regards the first stage is lengthy but it may be of value to the parties to this appeal if we set it out here in full. The Appeal Panel said at [76] –[79]: '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. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) 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 - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 1. We have sought to consider the appellant's first ground of appeal against the statutory regime referred to above to determine whether leave should be granted. As we would understand the appellant's argument, it is that there may have been a substantial miscarriage of justice as the decision is not fair and equitable or alternatively is against the weight of the evidence in failing to have regard to the admission that she submits the respondent made that he applied a red stain to all of the flooring contrary to the terms of the agreement. 2. Even when the appellant's argument is caste in terms of the legislative regime to which we have referred, it founders on the lack of a record of what was said at the hearing. The appellant submits that an unqualified admission was made. The respondent submits that it was not, but that the agreement was varied more than once to apply stain after the appellant was dissatisfied with the look of the job, as he sets out in his reply to the Notice of Appeal. 3. The appellant asks us to conclude that there may have been a miscarriage of justice but has not provided the recording of the proceedings necessary to establish the basis upon which she asserts the miscarriage, despite the Deputy President's direction that she do so. In these circumstances, we cannot be satisfied that there may have been a substantial miscarriage of justice because the decision was not fair and equitable or against the weight of evidence and accordingly, the Appeal Panel's discretion to grant leave to appeal is not enlivened. It is not necessary to consider the second step in the statutory process, namely whether the Appeal Panel ought to exercise its discretion to grant leave to appeal under s 80(2)(b) of the Act. 4. Leave to appeal will be refused in respect of ground 1. 5. A similar analysis applies to what we understand to be ground 2. It seems to us in summary that the appellant submits that the Member below has erred in her analysis of the evidence in failing to accept the appellant's case that the red stain was applied to all of the flooring without her consent and contrary to the terms of the original written quote. The respondent submits that the red stain was applied at the appellant's request after the new flooring was laid and she saw the marked difference between the old flooring in the hallway and the new floor boards of "Blue Gum". The Member had the evidence before her. As mentioned above, we do not have the benefit of a recording or transcript of the evidence before her despite the Appeal Panel's direction that it be lodged and served. We cannot conclude otherwise than that the appellant has failed to establish her contention and that we cannot be satisfied that there may have been a substantial miscarriage of justice. 6. Leave to appeal will be refused in respect of ground 2. 7. What we understand to be ground 3 is concerned with the member's observation that: "the applicant is also seeking additional money as costs. In light of my findings it is not necessary to consider this part of her claim". 1. The appellant submits that the claim for "costs" relates to the smearing of red stain on parts of the existing white skirting boards and the costs associated with removing it. There is nothing in the material before us which confirms the appellant's understanding that the Member was referring to damage to the skirting boards when she referred to "costs" in her reasons. Ordinarily we would understand a claim for repairs for damage caused to be described as a claim for the payment of a sum of money as compensation for the damage. It seems to us to be unlikely and most unusual for the Member to refer to such a claim as a claim for "costs". In the absence of a recording or transcript of the proceedings below or some other material to persuade us that the Member used the term "costs" in the unconventional way asserted by the appellant, we conclude that this ground of appeal must also fail and that leave should be refused. 2. The orders will be that leave to appeal is refused 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: 29 May 2018