Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Get Qualified Australia Pty Ltd v Schott [2017] NSWCATAP 96 Hearing dates: 13 March 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member S Thode, Senior Member Decision: Leave to appeal is refused. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – no question of law – leave to appeal – decision not against weight of evidence – decision not unfair or inequitable – no new evidence Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Corporations Act 2001 (Cth) Cases Cited: Arogen v Leighton [2013] NSWSC 1099 Collins v Urban [2014] NSWCATAP 17 Uvanna Pty Ltd and Ano v Tsang and Ors (1997) 72 FCR 502 Category: Principal judgment Parties: Get Qualified Australia Pty Ltd (Appellant) Barry Mathew Schott (Respondent) Representation: Ms Sella (Appellant) Mr Schott in person (Respondent) File Number(s): AP 16/55572 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer & Commercial Division Date of Decision: 10 November 2015 Before: M Tibbey, General Member File Number(s): GEN 16/46937 REASONS FOR DECISION Background 1. The underlying dispute concerns a contract whereby the respondent applied to the appellant to obtain qualifications as a plumber. The qualifications were not obtained and the respondent sought a refund. The main issue in the proceedings, at first instance, was whether or not the appellant had represented to the respondent that he would be able to qualify as a plumber within 90 days, by relying on his TAFE qualifications; and if not, he would be entitled to a refund (the Representations). The Tribunal at first instance found the Representations to be made out and further accepted that it was not possible for the respondent to rely on his TAFE qualifications, as they were too old. The Tribunal also accepted that had the respondent known he could not so qualify, he would not have entered into the contract. On 9 December 2016, the Tribunal published its reasons for decision. The appellant was ordered to refund $8,000.00 to the respondent. 2. In finding for the respondent, the Tribunal preferred the evidence of the respondent in relation to the Representations. The primary basis for the appeal is that that the Tribunal's preference for the respondent's evidence was unjustified. Jurisdiction 1. The appeal is brought under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). An appeal may be made in relation to 'any question of law' and with the leave of the Appeal Panel, may extend to 'other grounds'. The Appeal Panel may only grant leave to extend the appeal to other grounds (i.e. grounds that do not raise questions of law) in respect of appeals from the Consumer and Commercial Division (and this is such an appeal) if one or more of the criteria found in cl 12 of Sch 4 of the NCAT Act is satisfied. The Notice of Appeal 1. The appellant sought leave to appeal. The grounds of appeal were set out as follows: The appellant has suffered a substantial miscarriage of justice because: (1) The decision was not fair and equitable; (2) The decision was against the weight of evidence; (3) Significant new evidence is now available that was not reasonably available at the time of the hearing. 1. In the Notice of Appeal, the appellant refers to there being "no evidence" for a particular finding of the Tribunal. As this ground of appeal was developed during oral argument, it was to the effect that the Tribunal ought not to have preferred the evidence of the respondent and that as the respondent's evidence could, in some respects, be demonstrated to be flawed, it was not reliable evidence. Seen in this light, it is apparent that this ground did not raise a question of law, but was an aspect of the appellant's leave application that the Tribunal had made a decision against the weight of the evidence. Leave to Appeal 1. Pursuant to s 30(2)(b) of the NCAT Act and cl 12 of Sch 4, the Appeal Panel may only give permission for an appeal on grounds other than a question of law if it 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 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 order to demonstrate that the appellant had a "chance which was fairly open", it sought to adduce evidence of various telephone transcripts between the respondent and employees and representatives of the appellant, to counter some of the evidence given by the respondent at first instance. As these transcripts were not before the Tribunal member at first instance, it is convenient for the Appeal Panel to first consider the appellant's third ground for leave to appeal – that there is significant new evidence. New Evidence on Appeal 1. In order to determine whether the telephone transcripts constituted "new" evidence, in the sense of not being reasonably available at the time of the first instance hearing, the Appeal Panel heard evidence from Ms Sella, the appellant's representative, as to the genesis of the transcripts. 2. Ms Sella gave evidence that the transcripts were transcribed by Ms Turner, a witness at first instance on behalf of the appellant. They were transcribed from tapes kept by a third party provider to the appellant. Ms Turner was not available to give evidence to the Appeal Panel as there had been a family emergency, although no details were provided. Ms Sella recounted her conversation with Ms Turner as to the genesis of the transcripts as follows: Ms Sella to Ms Turner: "How did the hearing go?" Ms Turner: "I didn't have the call recordings at the hearing and the hearing went badly." Ms Sella: "Did you request the call recordings?" Ms Turner: "Yes I did but I didn't' get them in time." 1. The respondent objected to the receipt of the transcripts into evidence on the grounds that they were not comprehensive. Whilst the appellant accepted that not all telephone conversations are recorded, it was not accepted that these transcripts did not provide a comprehensive record. 2. Ultimately, it is not necessary for the Appeal Panel to determine the objection. There was no sufficient evidence to demonstrate to the Appeal Panel that the transcripts were "new" in the sense that the transcripts were not reasonably available at the time of the hearing. Whilst we accept that the transcripts of the telephone recordings took some time to produce, we have no evidence as to when the recordings were actually called for. Even in the event that the transcripts were sought in a timely fashion and not available in time, there was no explanation for why it was not open to the appellant to adduce evidence of the conversations recorded in the transcripts from the appellant's employees who actually held the conversations with the respondent: such as from Mr Arrighi and Mr Bennett. The appellant was silent on why no evidence could be adduced, other than the transcript of telephone conversations. 3. The Appeal Panel is not satisfied that the explanation supplied by the appellant at the hearing of the appeal is adequate to demonstrate that the evidence was "new". We decline to admit the evidence. 4. It follows from this that we are not satisfied that the appellant has suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing. Consequently, this does not provide a basis for the Appeal Panel to grant leave to appeal. Against the Weight of the Evidence or Unfair and Inequitable 1. The appellant further contended that in preferring the respondent's evidence, the Tribunal at first instance erred. This was for the reason that the appellant could demonstrate that some of the respondent's evidence was in fact erroneous. The appellant contended that once it was demonstrated that some of the respondent's evidence was unreliable, it follows that the Tribunal could not have been justified in preferring the respondent's evidence. 2. We consider that this contention is twofold: that the appellant suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of the evidence, or in the alternative, because the decision was not fair or equitable as it was based on unfounded accusations not proved by any evidence. 3. The first point to note is that, at the first instance hearing, the respondent gave sworn oral testimony before the Tribunal. The appellant's contentions go to whether that evidence ought to have been accepted and what weight ought to have been placed on that testimony. 4. The appellant pointed to the following matters to demonstrate that the appellant's evidence was unreliable. 5. First, the appellant contended that its documentary evidence demonstrates that some of the respondent's oral evidence was inaccurate. The respondent stated, at first instance, that there was a period where he had no contact with the appellant for over six months. The appellant relies on print-outs of its transactional and conversational interactions with the respondent which were logged in a computer program and tendered to the Tribunal below. Having regard to these records, the Appeal Panel accepts that there was some contact between the parties during the relevant time. However, this does not undermine the Tribunal's finding that the Representations were made and it is not sufficient to demonstrate that the respondent's evidence was relevantly unreliable. The Tribunal had the benefit of hearing the respondent's testimony and weighing it up against the respondent's evidence. It is a necessity for the Tribunal to weigh up evidence, and to prefer some and to reject other evidence. Here the Tribunal preferred the respondent's evidence that the Representations were made, to the appellant's evidence and we are not satisfied that the appellant has demonstrated that the Tribunal was unjustified in so doing. 6. Secondly, the appellant highlighted that the written terms and conditions of its contract were inconsistent with the Representations. Further, it was contended that the written document was "better" evidence than the respondent's oral evidence and ought for that reason to have been preferred. The Tribunal expressly dealt with this in paragraph 16 of its Notice of Order and stated: "Although the documentation of the respondent specifies strict criteria for a full refund, which the applicant does not meet, the respondent must also comply with the consumer guarantees embodied in the Australian Consumer Law (NSW) ('ACL')." By expressly noting that the terms were different to the Representations, the Tribunal was weighing up the evidence to make a finding of fact. In this instance, rather than preferring the written terms and conditions, the Tribunal preferred the oral evidence of the Representations which varied the terms and conditions. The Tribunal expressly considered the appellant's business records, yet still preferred the respondent's evidence. This is not an unorthodox approach and the mere fact that the terms and conditions were in writing does not undermine the Tribunal's fact finding process. 7. Thirdly, the telephone transcripts were also relied upon by the appellant to demonstrate that the respondent's evidence was unreliable. For instance, the appellant submitted that the respondent's evidence was not reliable because the respondent asserted, and the Member wrongly accepted, that the respondent did not speak to anyone but Mr Bennett when the phone transcripts show that he spoke to others. However, the Tribunal was not made aware of the existence of the transcripts and therefore the transcripts cannot factor in this analysis. The transcripts could be relevant only in relation to the ground of leave concerned with "new" evidence. For the reasons expressed above, the Appeal Panel has determined this is not "new" evidence. Events after hearing of the appeal 1. The Appeal Panel was notified that after the hearing of the appeal, on 17 March 2017, the appellant was placed into voluntary liquidation. A question arises whether the Appeal Panel may deliver this decision in the face of s500(2) of the Corporations Act 2001 (Cth) which relevantly provides that after a company enters voluntary winding up "no action or civil proceeding is to be proceeded with or commenced against the company except by leave of the Court". 2. This is an appeal by the company against a decision made against the company and is therefore a proceeding by the company not a proceeding against the company: Arogen v Leighton [2013] NSWSC 1099 at [47], citing Uvanna Pty Ltd and Ano v Tsang and Ors (1997) 72 FCR 502 at 503. Accordingly, by delivering the decision, the Appeal Panel is not proceeding with a proceeding against a company in liquidation. Conclusion 1. In essence, the appellant's case is that the Tribunal erred in preferring the respondent's evidence for the reason that the respondent's evidence can now be shown to be flawed. For the reason that the telephone transcripts are not "new" evidence the Appeal Panel declined to consider these. Accordingly, the respondent's case had to be made out on the evidence before the Tribunal at first instance. From that material, the Appeal Panel is not satisfied that any discrepancies undermine the crucial finding that the Representations were made or warrant a conclusion that the findings were against the weight of the evidence or unfair and inequitable. The Tribunal weighed the evidence and concluded in an orthodox fashion. Orders 1. For the above reasons, the order of the Appeal Panel is: 1. Leave to appeal is refused. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 03 May 2017