Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63 Hearing dates: 16 January 2016 Date of orders: 23 March 2017 Decision date: 23 March 2017 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member T Simon, Senior Member Decision: 1. The time to appeal is extended to and including 27 October 2016. 2. Appeal dismissed. Catchwords: CONSUMER LAW – misleading and deceptive conduct. CONSUMER LAW – relief in relation to unfair terms Australian Consumer Law (NSW) s 23 and 24 APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – Extension of time to appeal question of law – a constructive failure to exercise jurisdiction – insufficient reasons – no evidence – irrelevant considerations – wrong finding of fact – other grounds –- decision not fair and equitable – significant new evidence Legislation Cited: Australian Consumer Law, ss 18, 23, 24, 53, 250 Civil and Administrative Tribunal Act 2013 No.2 (NSW), s 38(2), 41, cl 12 of Sch 4 Evidence Act 1995 (NSW), s 140, 144 Fair Trading Act 1987 (NSW), ss 4, 71, 79E, 79J Civil and Administrative Tribunal Rules 2014 (NSW), rr 6, 8, 25(4)(c) Cases Cited: Alchin v Daley [2009] NSWCA 418 Aytugrul v R (2012) 247 CLR 170; HCA 15 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Baker v David [2015] NSWCA 235 Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 C v W [2015] NSWSC 1774 Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 Collins v Urban [2014] NSWCATAP 17 Con Karakatsanis v Racing Victoria Ltd [2013] VSCA 305 Dean v Stockland Property Management Pty Ltd and Anor [2010] NSWCA 66 Demagogue Pty Ltd v Ramenensky Pty Ltd (1992) 39 FCR 31; FCA 557 Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394; HCA 6 GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd [2016] NSWSC 1642 Goodwin v Commissioner of Police [2012] NSWCA 379 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Haines v Leves (1987) 8 NSWLR 442 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Keith v Gal [2013] NSWCA 339 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; HCA 32 Michael Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357; HCA 31 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Qushair v Raffoul [2009] NSWCA 329 Re R [2000] NSWSC 866 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 Semrani v Manoun; Williams v Manoun [2001] NSWCA 337 State Super SAS Trustee Corporation v Comes [2013] NSWCA 257 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; HCA 48 Category: Principal judgment Parties: John Clark (Appellant) Electrical Home-Aids Pty Ltd (Respondent) Representation: Appellant in person A Azodolmolki, Area Manager (Respondent) File Number(s): AP 16/47774 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Date of Decision: 12 September 2016 Before: D Goldstein, Senior Member File Number(s): GEN 16/33238 REASONS FOR DECISION Introduction 1. The appeal was lodged on 27 October 2016. Mr Clark, a consumer, is appealing a decision of the Tribunal, made on 12 September 2016, dismissing his application. The application arose out of his purchase of a Miele Vacuum Cleaner model S6330 from the respondent on 29 June 2015. 2. Before the Tribunal the appellant alleged that the respondent had engaged in misleading or deceptive conduct, or that the contract of sale was unfair within the meaning of s 23 and 24 of the Australian Consumer Law ("ACL"). 3. For the reasons set out below we are of the opinion the appeal must be dismissed. Extension of Time to Appeal 1. The Tribunal delivered oral reasons at the conclusion of the evidence and the parties' submissions on 12 September 2016. The appellant was present at that time. As is his right, the appellant requested written reasons. Those written reasons were delivered on 29 September 2016. 2. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") requires, in a case such as this, that the appeal be lodged: "… within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)." 1. As the appellant was present when the Tribunal delivered oral reasons on 12 September 2016, he was notified of the decision to be appealed and given reasons for the decision on that day. 2. The Notice of Appeal was filed on 27 October 2016, being 44 clear days after 12 September (excluding the days of 12 September and 27 October pursuant to cl 6 of the NCAT Rules). Accordingly, the appellant required an extension of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 No.2 (NSW) (the "NCAT Act"). 3. We drew this to the attention of the appellant at the commencement of the hearing of the appeal. The appellant then made an oral application for that extension of time. 4. Applications for extensions of time under s 41 of the NCAT Act are required to be in writing unless that requirement is dispensed with (r 8 of the NCAT Rules). We dispensed with that requirement in this case, and the respondent did not object to that course. 5. The appellant submitted that he had read r 25 of the NCAT Rules, but thought it only applied to written reasons for decision. That is incorrect as the rule does not, in terms, confine itself to written reasons. Acting on that incorrect basis, the appellant filed his Notice of Appeal 27 clear days after being notified of the Tribunal's written reasons. This indicated his willingness to comply with the time provision for filing his Notice of Appeal, and his attempt to do so. 6. The respondent opposed the granting of an extension of time. The respondent submitted that the appellant had been given sufficient opportunity to litigate his dispute with the respondent and no further opportunity should be given to him. 7. At the conclusion of submissions, we indicated that we were inclined to grant an extension of time, we would hear the appeal, and we would determine the application for an extension of time, and give reasons for it, in this judgement. 8. We have decided to grant the appellant's application and we extend the time for the lodging of the appellant's Notice of Appeal up to and including 27 October 2016. 9. The relevant considerations on an application such as this were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, especially at [18] – [22]. They need not be repeated here. 10. It is apparent that the appellant feels a genuine sense of grievance arising from his purchase of the vacuum cleaner from the respondent. He has, in other relevant respects, attended to the procedural obligations imposed upon him in litigating his dispute in the Tribunal with diligence and with due regard to the Tribunal's procedural requirements (as he understands them). 11. We accept his explanation of an honest misunderstanding of the requirements of r 25 of the NCAT Rules. He is, and always has been, unrepresented. He is not legally qualified. The length of the delay is only 16 days. The respondent does not assert the existence of any prejudice arising from an extension of time to lodge the Notice of Appeal other than the loss of the benefit of the inevitable result should that extension of time not be granted. 12. On the other hand, the amount in dispute is, in monetary terms, very modest. The respondent obtained a decision in its favour and, once the period for appeal had expired, had, in the relevant sense, a vested right to retain the benefit of that decision. The appellant's prospects of success on the appeal were poor. 13. Weighing all of those matters it is appropriate, in our opinion, to grant the appellant the extension of time to do justice between he and the respondent. Factual Background 1. The appellant's evidence before the Tribunal was uncontested and accepted. 2. In June 2015, the appellant decided to purchase a new vacuum cleaner. He looked up a consumer's magazine to find out which vacuum cleaners that publication recommended as good value for money. It recommended the Miele S6210 Compact model. 3. On the morning of 29 June 2015, he telephoned the respondent's store at Camperdown and asked whether the respondent had that model in stock. He was answered in the negative, but was told that the respondent had comparable Miele machines at around the same price. 4. That afternoon the appellant attended the respondent's store at Camperdown and spoke to a salesperson. The appellant said to the salesperson: "I wanted (sic) to buy a Miele S6210, but I understand you don't have them, so what Miele machines do you have that are similar and are around the same price?" 1. The appellant was then shown a Miele S6330 Compact Allergy model vacuum cleaner (which was on display), was told it was a popular model and cost one dollar less than the model he had initially wanted to purchase. The appellant was shown the controls on the machine, how to work them, and he was allowed to operate the machine for himself for a brief time. 2. The appellant was particularly interested in the suction power of the machine and was impressed with the model he was shown. He told the salesperson he would purchase that model vacuum cleaner, and that he had better purchase some dust bags for it. The salesperson produced a packet of four dust bags for the machine and told the appellant they would cost $22.50. 3. The appellant then said: "That seems very expensive to me, it is well over $5 per bag. Why is it that you charge so much for something I will be throwing away?" 1. In response, he was told that they were very good dust bags, they were made especially for the machine and they lasted for a long time. 2. The appellant was then given a sealed box containing a new model S6330 machine together with certain other items including the user's manual. He paid for the purchase by credit card and was handed a receipt. 3. On the receipt, which the appellant did not read at the time (although he was able to if he so chose), were a number terms which included the following (the "warranty exclusion"): "1. Warranty …………………… (Warranty excludes malfunction caused by misuse, abuse, negligence, accident, normal wear & tear or alteration by any person, filters, replaceable bags & drive belts)" 1. Thereafter the appellant and his wife used the vacuum cleaner in the ordinary way. 2. On 1 May 2016, whilst using the vacuum cleaner, the appellant noticed it emitted a loud, unpleasant and alarming noise. 3. The following day he took the vacuum cleaner back to the respondent's Camperdown store whereupon, on testing, it emitted the same noise. The person attending to the appellant told him he thought there was a problem with the filter. That person removed the filter, being a HEPA AirClean filter ("HEPA filter"). A new HEPA filter was installed and the machine, when operated, no longer emitted the same noise referred to earlier. 4. The person attending the appellant then told him that each new HEPA filter would cost $54.90. The appellant said that because he had paid $348 for the vacuum cleaner only 10 months before, he was not willing to pay an extra $54.90 to merely keep the device working properly (with regular replacement of the filter in the future). The appellant refused to pay for a new filter, asked that the original (used) HEPA filter be reinstalled, and left the respondent's premises with his machine. 5. In short, the appellant says that he should have been told, prior to purchasing the vacuum cleaner, that the HEPA filter would need to be regularly replaced (approximately every 10 months or so depending upon usage) and that HEPA filters would cost $54.90 (or thereabouts). The appellant said if he had been told HEPA filters cost over $50 he would not have purchased the vacuum cleaner. 6. The appellant commenced proceedings in the Tribunal seeking orders for a refund of the purchase price of the vacuum cleaner, being $370.50. 7. Before the Tribunal the appellant relied upon three causes of action, namely that: 1. the purchase involved a "hidden debt or hidden charge" contrary to s 53 of the Australian Consumer Law (the "ACL") (the appellant does not pursue that claim on appeal and no further attention needs to be given to it); 2. the respondent had engaged in misleading or deceptive conduct contrary to s 18 of the ACL: and 3. the contract of sale was "unfair" within the meaning of that term in s 23 and 24 of the ACL. Grounds of Appeal 1. The appellant challenges the findings of the Tribunal in relation to his second and third claims (misleading or deceptive conduct, and that the contract was "unfair"). 2. Section 80 of the NCAT Act provides that the appellant has a right of appeal on any question of law, and may appeal on any other ground with the leave of the Appeal Panel. 3. Clause 12 of Schedule 4 to the NCAT Act applies to appeals from the Consumer and Commercial Division of the Tribunal. This is such an appeal. That clause provides that the Appeal Panel may grant leave to appeal on any other ground if it is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable; 2. the decision of the Tribunal 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 appellant did not identify any questions of law. However, various questions of law are apparent from his submissions. We set them out below. The numbering of the Grounds is ours and is adopted for convenience. Ground 1 1. The appellant says that the Tribunal did not understand that his case was that he was sold something materially different from the thing he asked for, and that it was not, contrary to a comment by the Tribunal, a "normal consumer transaction". 2. This is an assertion that there was such a fundamental misunderstanding of the case brought by the appellant that the Tribunal failed to address and determine the issues before it, and had failed to exercise its jurisdiction (a constructive failure to exercise jurisdiction). This is a question of law; see Goodwin v Commissioner of Police [2012] NSWCA 379 per Basten JA, with whom Allsop P and Young AJA agreed, at [18] – [25]; State Super SAS Trustee Corporation v Comes [2013] NSWCA 257 per Basten JA, with whom McColl JA and Preston CJ at LEC agreed, at [11] – [12]. 3. The Tribunal's reasons concentrate on salient facts material to the elements of his cause of action as informed by the authorities. 4. In the passages complained of the Tribunal was referring to the essential facts from which arose the appellant's complaint of a material non-disclosure. That is, the Tribunal was ascertaining whether the circumstances, objectively speaking, gave rise to a reasonable expectation that the cost and life span of the HEPA filters would be disclosed. 5. In its reasons the Tribunal set out, in summary but concise fashion, the conversation between the appellant and the respondent's representative set out at [24] and [25] above, and the appellant's submission that that conversation would have alerted the respondent to the appellant's concerns regarding the price of filters. 6. The Tribunal then referred to various relevant authorities, including salient passages within those authorities, which have considered the question of silence as misleading or deceptive conduct. These authorities were Demagogue Pty Ltd v Ramenensky Pty Ltd (1992) 39 FCR 31; FCA 557, Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357; HCA 31 and Semrani v Manoun; Williams v Manoun [2001] NSWCA 337. 7. The passages from those authorities cited by the Tribunal included the following principles: 1. the question is whether, having regard to all relevant circumstances, there has been conduct which is misleading or deceptive; 2. the characterisation of conduct will be undertaken by reference to its circumstances and context; 3. silence may be a circumstance to be considered; 4. the knowledge of the appellant may be relevant; 5. common assumptions and practices prevailing in a particular profession, trade or industry may be relevant; 6. the judgment which looks to reasonable expectation of disclosure as an aid to characterising non-disclosure as misleading or deceptive is objective; 7. unless there is a reasonable expectation that if some relevant fact exists it will be disclosed, it is difficult to see how silence could support the inference that that fact does not exist; 8. silence may more readily lead to a finding of breach where there is a duty of disclosure; 9. a person cannot engage in misleading or deceptive conduct unless the person has actual knowledge of the matter said to be misleading or deceptive. 1. The Tribunal considered all the relevant circumstances and context, correctly applied an objective test, and found that those circumstances and context did not (objectively) give rise to a reasonable expectation that the respondent's representative would voluntarily mention the cost and life span of the filters. 2. Clearly, the appellant subjectively feels that, in the circumstances, he reasonably expected the cost and life span of the HEPA filters to be mentioned to him. But the test is objective, not subjective, and the Tribunal correctly applied the objective test. 3. The Tribunal's comment that this was a normal consumer transaction was nothing more than a reference to a consumer walking into a retail store, asking some questions about a product, and purchasing the product. 4. The fact, as he puts it, that the appellant ended up with something materially different from the thing he asked misstates the issue. He obtained what he asked for (after advice from the respondent). The issue was whether that advice was misleading or deceptive in failing to mention the cost and life span of the HEPA filters required by the vacuum cleaner. 5. We reject Ground 1. Ground 2 1. The appellant says, correctly, that not all the evidence was referred to in the Tribunal's reasons. This gives rise to a question of law regarding proper reasons. 2. In Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; HCA 48 the majority (Gleeson CJ, McHugh and Gummow JJ) said at [62]: "A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case." 1. This statement was further explained in Baker v David [2015] NSWCA 235 by Meagher JA, with whom McColl JA and Sackville AJA agreed at [24]. His Honour said: "In Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62] - [63] Gleeson CJ, McHugh and Gummow JJ described the trial judge's obligation properly to consider a party's case as a "paramount judicial duty". That does not mean that the judge has to deal with every argument and issue that might arise in the course of a case. However, "where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue": per Nettle JA (Batt and Vincent JJA agreeing) in Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130 at [21]." 1. What Meagher JA said in the quote above in relation to substantial or significant arguments and issues applies equally to evidence, as Whisprun included facts (and thus evidence of facts) in its analysis. 2. Such a ground should only be accepted where the record of the trial or other evidence persuasively suggests the Tribunal did not properly consider a party's case. In Whisprun at [63] the majority said: "To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty." 1. We are not persuaded that the Tribunal overlooked any evidence, let alone any significant or substantial evidence. 2. At the commencement of its reasoning on this issue the Tribunal referred to "the circumstances disclosed by the evidence". This, read in context, indicates that the Tribunal had in mind the totality of the evidence led by the appellant. The Tribunal then turned to the significant parts of the evidence, starting with the words "(h)is evidence included …". This was followed by references to the evidence regarded by the Tribunal as significant thereafter. 3. Thus, a proper reading of the Tribunal's reasons reveal that the Tribunal did have regard to the evidence which the appellant asserts is not referred to in the judgment, albeit not mentioning all that evidence in its reasons. 4. Even if we are wrong about that, the evidence identified by the Tribunal was the significant evidence relevant to the cause of action, and the evidence not mentioned was not. 5. We reject Ground 2. Ground 3 1. The appellant asserts there was no evidence for the primary factual finding that the respondent's representative was most probably of the view the appellant's query (about the cost of dust bags) had been answered in a satisfactory way and the answer was accepted by the appellant. 2. A no evidence point is a question of law. 3. It is correct that there was no direct evidence of this fact, but the Tribunal was entitled to draw that inference from other objective facts (see Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 per McDougall J, with whom Ipp and Young JJA agreed, at [63]). The facts being that the content of the conversation, and the lack of further follow up questions by the appellant. Thus, there was some evidence upon which the inference was based, and not "no evidence". 4. Further, as McDougall J, with whom Ipp and Young JJA agreed, observed in Coastwide Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [64]: "... the process of inference may involve an intuitive element that is not susceptible to detailed explication …" 1. We accept that was the case here. 2. We reject Ground 3. Ground 4 1. The appellant complains about the Tribunal's findings that the vacuum cleaner was a high-quality product from Europe and it would not be immediately apparent that a purchaser of such a product would see the cost of a filter as a make or break issue. The appellant says that these findings are irrelevant. 2. Taking into account an irrelevant consideration is not an error of law (nor does it raise a question of law) in this context, unless so much irrelevant material enters the decision-making process that it is a nullity; see Re R [2000] NSWSC 866 at [25], cited with approval in C v W [2015] NSWSC 1774 at [48]. 3. These findings were not irrelevant. They were made, quite legitimately, in the context of determining all the relevant circumstances and the context in which the alleged wrongful non-disclosure occurred, and to determine whether the non-disclosure was misleading or deceptive (see [45] above). 4. They were objective facts setting part of the context in which the conversation between the appellant and the respondent's representative took place. They informed the Tribunal in its judgment as to reasonable expectation of disclosure. 5. We reject Ground 4. Ground 5 1. The appellant submits that the finding by the Tribunal that there was no evidence that the salesperson had any knowledge of the cost or life span of the HEPA filters was erroneous, and the Tribunal ought to have taken judicial knowledge that the salesperson had acquired that knowledge. 2. A wrong finding of fact is not a question of law; see R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13], cited with approval in GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd [2016] NSWSC 1642 at [28]. 3. Further, a failure to make a finding or draw an inference of fact given the evidence, or even the overwhelming evidence, does not give rise to a question of law; see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA, with whom Samuels JA agreed, at 155; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 per Leeming JA, with whom Basten and Meagher JJA agreed, at [57]; Re R [2000] NSWSC 866 at [25]; Haines v Leves (1987) 8 NSWLR 442 at 469 – 470. 4. Be that as it may, the appellant did seek leave to appeal on grounds other than a question of law, and identified this observation by the Tribunal as one he challenged. 5. Leave to appeal under s 80(2)(b) would ordinarily be granted in circumstances where there is an error that is plain and readily apparent, which is central to the Tribunal's decision and not merely peripheral, and it would be unjust to allow the finding to stand, or a factual error was unreasonably arrived at and clearly mistaken; see Collins v Urban [2014] NSWCATAP 17 at [84]. 6. The Tribunal was correct that there was no direct evidence establishing this fact. The appellant submits that "judicial notice" could be taken that vacuum cleaner salespersons working in specialist vacuum cleaner retail stores are "expected to acquire" such knowledge. 7. The Tribunal did not err. 8. Section 144 of the Evidence Act 1995 (NSW) displaces the common law doctrine of judicial notice. [1] Section 144 provides: (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 1. Section 38(2) of the NCAT Act, subject to some exceptions which are not presently relevant, provides that the Tribunal is not bound by the rules of evidence. How, then, is the matter to be approached? 2. In Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; HCA 32 the High Court was concerned with a similar provision contained in the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). In relation to that provision French CJ said at [15] (citations omitted): "… The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law." 1. And at [17]: "The exercise of the tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules 'represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth'. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to 'creep back through a domestic procedural rule'." 1. Section 140 of the Evidence Act 1995 (NSW) is also relevant. It provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. In an oft-cited passage from Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 Dixon J stated: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 1. In Michael Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 at [23] Warren CJ, Osborn JA and Ginnane AJA said at [23] that the Victorian equivalent of s 140 of the NSW Evidence Act, which is in identical terms, embraced the same principles as those stated by Dixon J in Briginshaw. At [26] their Honours said: "Because the Tribunal is not bound by the rules of evidence, it is not bound by the provisions of s 140 of the Evidence Act 2008 nor by the common law principles established by Briginshaw. Nevertheless, those principles reflect common sense notions of probability with respect to human conduct and it is entirely proper for the Tribunal to take them into account when considering allegations of serious misconduct. The High Court explained the underlying notion in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd . [T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove." 1. Section 38(2) of the NCAT Act says that the Tribunal is "not bound by" the rules of evidence, it is not a prohibition upon the Tribunal applying them if it sees fit. 2. In Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Santow JA said, in reference to Briginshaw, Dixon J's "inexact proofs, indefinite testimony, or indirect inferences" and tribunals (operating under similar rules as s 38(2) of the NCAT Act) at [35]: [2] "I am accordingly satisfied that the Tribunal would have recognised that Briginshaw was the standard it would apply. But, as I later elaborate, how that standard was to operate must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence. The notion of "inexact proof, and indefinite testimony or indirect references" needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body." 1. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Leeming JA, with whom Basten and Gleeson JJA agreed, after considering, inter alia, the matters and cases we have set out above, said at [127]: "In those circumstances, (the primary judge's reasons) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. (The primary judge's reasons) should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT." 1. We are not persuaded that we should not apply s 144 of the Evidence Act. That is, we are not persuaded that we should find as a fact (as urged upon us by the appellant) that vacuum cleaner salespersons working in specialist vacuum cleaner retail stores are "expected to acquire" such knowledge because such a fact is not "reasonably open to question" and is "common knowledge in the locality in which the proceeding is being held or generally". 2. No doubt salespeople know many things about the products they sell. But the variety of products, variety of models within products, the changing of models from time to time to take but a few examples, are all circumstances which suggest there would be some features of their products which salespeople would have to look up, rather than knowing at any particular time. 3. In such circumstances it could not be said that it was "not reasonably open to question" that the salesperson knew the cost and life span of the HEPA filters, nor that that was common knowledge in the relevant locality. 4. As McDougall J said in Coastwide at [62]: "… conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence." 1. Although his Honour was referring to inferences, the same observation may be made about the fact the appellant submits ought to have been found. It is conjecture. Plausible conjecture, but conjecture none the less. 2. Therefore, we cannot see any plain or readily apparent error in the Tribunal not finding that the salesperson had the asserted knowledge. 3. Even if we were wrong about that, the failure to find that fact was not central to the Tribunal's reasoning (per [76] above). 4. That is because the Tribunal found there was no reasonable expectation that the cost and life span of the HEPA filters would be disclosed (even if the salesperson knew those facts), and thus found there had been no misleading or deceptive conduct. Put another way, even if the Tribunal found that the salesperson had that knowledge, the appellant would still have lost his case for misleading or deceptive conduct. 5. We would refuse leave to appeal in relation to this finding. Ground 6 1. The appellant asserts that the Tribunal erred in failing to find that the contract of sale was "unfair" within the meaning of that term in s 23 of the ACL. In truth, the appellant's attack was directed to the warranty exclusion alone, although the relief sought extended to the whole contract. We shall return to that matter later below. 2. Before the Tribunal, the relief expressly sought by the appellant on this aspect of his case was a declaration that the contract of sale was void. If that declaration was made, he then sought (in substance although not in terms) restitution for the amount paid for the vacuum cleaner. 3. Restitution in this context means that the appellant would be refunded the purchase price, and the appellant would return the vacuum cleaner to the respondent. 4. The Tribunal does not have jurisdiction to declare contracts (or terms of contracts) void. [3] However the Tribunal, being a "court" for the purposes of Part 2-3 of the ACL (s 23 – 28 incl of the ACL) – see s 30(4) of the Fair Trading Act 1987 (NSW) ("FTA") - is able to make a finding that a term of a contract is unfair, and then grant relief in the nature of restitution pursuant to s 79N(h) of the FTA. No doubt the Tribunal, correctly, proceeded on that basis. 5. The Tribunal found that the contract was not unfair for three reasons. 6. First, the warranty was irrelevant to the appellant's claim because, upon its proper construction, the warranty simply meant that if a filter was required, the warranty would not be enlivened. 7. Second, the warranty was irrelevant because the appellant had not made a warranty claim (which presumably would have had to have been refused to give rise to a dispute between the parties). 8. Third, the warranty was not "unfair" within the meaning of s 23 of the ACL because the exclusion of the filter from the warranty was transparent, it would not cause a significant imbalance in the parties' rights and obligations arising under the contract, and was reasonably necessary to protect the legitimate interests of the respondent and would not cause detriment (financial or otherwise) to a party if it were to be applied or relied on. Further, the Tribunal found it was not unfair for the respondent to exclude consumables from a warranty as to performance, all products such as vacuum cleaners require consumables to be replaced on a periodic basis, it is not unusual for performance to be adversely affected if they are not replaced and all reasonable consumers are aware of that fact. 9. The question of law in substance raised by the appellant is the same as that raised in relation to Ground 1, namely that that there was such a fundamental misunderstanding of the case brought by the appellant that the Tribunal failed to address and determine the issues before it, and has thus failed to exercise its jurisdiction (see [39] above). 10. The appellant's written submission on appeal was that the warranty exclusion (set out at [28] above) was not, in fact, a term of the contract for sale. He relied upon Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163. This case was what is commonly referred to by lawyers as a "ticket case". 11. In short, the common law principle relied upon by the appellant was that a party such as the respondent is not entitled to rely on an exemption clause contained in a ticket or other document when a person such as the appellant was not aware, when the contract was made, that an exemption clause was intended to be a term of the contract, unless, at the time of the contract, the respondent had done all that was reasonably necessary to bring the exemption clause to the appellant's notice. 12. However, the appellant did not then direct attention to the various factors relevant to that common law principle and which are discussed in the authorities. Rather, he directed the Tribunal's attention to the factors referred to in s 24 of the ACL and particularly s 24(3)(c) and (d). 13. The Tribunal addressed those ACL factors (as the appellant asked it to) and rejected the appellant's claim for relief based upon s 23 and 24 of the ACL. In its reasons the Tribunal did not refer to the principles arising from the ticket cases, and having read the appellant's submissions to the Tribunal, it is understandable why it did not do so, they were not referred to. 14. It appears, with no disrespect to the appellant who is not legally qualified, that he has conflated the common law principle we have referred to above, with a case made under s 23 and 24 of the ACL. Although there are some common factors relevant to both the common law principle and the statutory right, the two are separate and distinct. 15. Be that as it may, whether the appellant put or puts an argument that the warranty exclusion could not be relied upon because of the common law principle, or put or puts an argument that it, being part of the contract, it should be found to be unfair, both arguments must fail. 16. That is because the appellant never made a claim under the warranty (in the Tribunal or otherwise), and the respondent did not (in the Tribunal) refuse that claim relying upon the warranty exclusion. In substance, these facts formed the basis for the first two reasons the Tribunal gave for dismissing this aspect of the appellant's claim. 17. It was for the appellant to assert and prove he had a legal right to damages or some other relief. He did, for example, assert a legal right to damages on his claim for misleading or deceptive conduct. But his argument based on s 23 and 24 of the ACL incorrectly assumed he was entitled to relief, and incorrectly assumed the respondent was resisting that relief based upon the warranty exclusion (as a defence to the appellant's claim). In substance, the appellant's submissions are by way of reply to that defence, a defence which was never raised (in the Tribunal) by the respondent. 18. Further, the appellant's claim in the nature of restitution was based upon a declaration that the whole contract be found to be unfair (which was the only way to achieve restitution of the kind sought), yet, all his submissions were directed to having the warranty exclusion alone declared void (because it was on the receipt, he didn't read it, his attention wasn't directed to it etc) rather than the whole of the contract. 19. Had the warranty exclusion alone have been found to have been unfair, the balance of the contract would have continued to bind the appellant. That is because s 23(2) of the ACL provides that a contract continues to bind the parties if it is capable of operating without the unfair term, and this contract was capable of operating without that warranty exclusion. As the balance of the contract would survive a challenge to the warranty exclusion, orders in the nature of restitution of the whole of the purchase price would not have been available to the appellant. 20. We reject Ground 6. Ground 7 1. The appellant also sought leave to appeal on grounds other than a question of law, asserting that the Tribunal's decision was not fair and equitable because: 1. the Tribunal did not properly comprehend the case put forward by him; 2. the Tribunal failed to provide proper reasons; and 3. the Tribunal took into account irrelevant considerations. 1. Clause 12 of Schedule 4 to the NCAT Act applies to appeals from the Consumer and Commercial Division of the Tribunal. This is such an appeal. We have set out the substance of that clause earlier in these reasons, namely that the clause provides that the Appeal Panel may grant leave to appeal on any other ground if it is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable; 2. the decision of the Tribunal 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 appellant initially asserted that significant new evidence was now available that was not reasonably available at the hearing before the Tribunal. This new evidence consists of the actual vacuum cleaner he purchased, the dust bags he purchased at the same time, and three pages from the consumer magazine referred to at [20] above. As the appellant acknowledges, this evidence was available at the time of hearing. Further, in submissions, the appellant accepted that this "new" evidence would not assist his case, a concession correctly made. It need not be further considered. 2. We have dealt with the first and third of the grounds outlined above at [108] as questions of law earlier in these reasons. Characterising them as some other ground does not change their substance or the result. As the appellant formally sought leave to appeal, and to the extent necessary, that application is formally refused. For the reasons already given we are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the Tribunal failed to properly comprehend the case put forward by him or took into account irrelevant considerations. Failure to Give Reasons 1. The assertion that the Tribunal failed to give proper reasons is a question of law and does not require leave to appeal. Accordingly, we shall treat this ground as a ground of appeal for which leave was not required. 2. The assertion that the Tribunal failed to provide proper reasons was not expanded upon in writing, nor addressed in oral submissions. No particular matters were identified (that we have not already dealt with earlier in these reasons) that could be said to indicate a failure to provide proper reasons. 3. The principles applying to this ground appear in many cases, including Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56], Qushair v Raffoul [2009] NSWCA 329 at [52], Alchin v Daley [2009] NSWCA 418 at [35] – [36], Dean v Stockland Property Management Pty Ltd and Anor [2010] NSWCA 66 at [52] and in some detail by Gleeson JA, with whom Emmett JA and Simpson J (as her Honour then was) in Keith v Gal [2013] NSWCA 339 at [109] – [119]. 4. Those principles do not need repeating here. Suffice to say that, given the case in question and the matters in issue, we are not satisfied that the extent and content of the Tribunal's reasons were insufficient to constitute a proper exercise of the Tribunal's adjudicative function. The central controversies between the parties were dealt with, material evidence referred to and findings made in relation to material issues. 5. We are not satisfied that the Tribunal failed to engage with the case put by the appellant, and we are not satisfied that any important or critical evidence was ignored. Further, we are satisfied that the Tribunal's process of reasoning was understandable and logical. 6. We reject the submission that the Tribunal erred in law in failing to give proper reasons. As the appellant formally sought leave to appeal, and to the extent necessary, that application is formally refused. Conclusion 1. The appeal is dismissed. ********** Endnotes 1. Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394; HCA 6, at [17], per Gleeson CJ, McHugh, Hayne and Heydon JJ; Aytugrul v R (2012) 247 CLR 170; HCA 15, at [21], per French CJ, Hayne, Crennan and Bell JJ. 2. The last sentence of which was quoted with approval in Con Karakatsanis v Racing Victoria Ltd [2013] VSCA 305 at [38] per Osborn JA, with whom Beach JA agreed. 3. See s 250 of the ACL, and s 30 and 71 of the FTA. 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 March 2017