Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wholesale Auto City Pty Ltd v Jobson [2018] NSWCATAP 25 Hearing dates: 12 January 2018 Date of orders: 22 January 2018 Decision date: 22 January 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Titterton, Principal Member Decision: (1) The appeal is dismissed; and (2) The order made on 28 November 2017 staying the operation of the orders made on 26 September 2017 is lifted. Catchwords: Question of law - no substantial miscarriage of justice - where appellant not able to attend hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Wholesale Auto City Pty Ltd (Appellant) Crystal Jobson (Respondent) Representation: Counsel: Not applicable Solicitors: Not applicable File Number(s): AP 17/43482 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 26 September 2017 Before: S Smith, General Member File Number(s): MV 17/14294 reasons for decision Introduction 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal on the 26 September 2017 (which we will refer to as the Decision). In the Decision the Tribunal made the following orders: 1. WHOLESALE AUTO CITY Pty Ltd 16 Seine Court ST CLAIR NSW 2759 Australia is to pay CRYSTAL JOBSON 17 Taylor Street NARRABRI NSW 2390 Australia the sum of $5000.00 on or before 06-Oct-2017 being refund of purchase price of Holden Commodore sedan where vehicle suffered major fault soon after purchase. 2. Upon payment of the amount in order 1 the respondent may collect the car from the applicant whereupon ownership will revest in it. 1. In addition, the Decision included the following statement: Noted that although there is no warranty under the Motor Dealers Act with respect to this vehicle the Australian Consumer Law also applies. 1. The Decision did not contain other orders or give further reasons. 2. The Decision arose out of a dispute between Ms Jobson and Wholesale Auto City Pty Ltd, which, in turn arose out of a transaction by which Ms Jobson purchased a Holden Commodore from Wholesale Auto City for $5,000.00. The appellant is Wholesale Auto City Pty Ltd (Wholesale Auto City) and Ms Jobson the respondent to this appeal. 3. It is relevant to our decision to record the procedural history which led to the Decision and to this appeal. We record this history as follows: 1. On 27 March 2017 Ms Jobson filed her application; 2. The Tribunal's file records that on 10 April 2017 the Tribunal wrote to Wholesale Auto City advising that an application had been received and that Ms Jobson had requested that the proceedings be heard at Tamworth. The letter stated that hearings are usually held at a venue closest to the place of contract or dispute, or at a venue where both parties are centrally located. The letter stated that in this case, that place was Penrith; 3. On 13 April 2017 an email was received from a Mr Henry James from Wholesale Auto City requesting the hearing stay in Penrith. Ms Jobson's request was refused and the hearing remained in Penrith. Both parties were advised by emails sent by the Tribunal on 24 April 2017; 4. Ms Jobson's application came before the Tribunal on 18 May 2017 at Penrith. Both parties were advised of the proposed hearing by email sent by the Tribunal on 24 April 2017; 5. The Tribunal's record of the hearing on 18 May 2017 discloses that Ms Jobson appeared by telephone and that there was no appearance by Wholesale Auto City. The Tribunal made directions for the parties to exchange evidence and the directions made by the Tribunal were emailed to the parties; 6. On 2 June 2017 the Tribunal sent a notice of hearing by email to both parties advising the parties that the hearing of the application would take place at Penrith on 26 September 2017; 7. The Tribunal's file contains Ms Jobson's supporting evidence which was received by the Tribunal on 25 May 2017. There is no record of evidence having been filed by Wholesale Auto City; 8. The hearing took place on 26 September 2017. Ms Jobson appeared by telephone and there was no appearance by Wholesale Auto City; 9. On the same day (26 September 2017) the Tribunal emailed the orders made by the Tribunal to both parties; 10. On 11 October 2017 Wholesale Auto City filed a Notice of Appeal. That document named Shane Drury as the representative of Wholesale Auto City. The Grounds of Appeal were briefly stated as: We would like the opportunity to mediate and rectify the problem that the customer is experiencing. We were not able to attend the hearing and put fourth our version of events. 1. The Notice of Appeal is signed by Henry James and is dated 10 October 2017; 2. On 8 November 2017 Ms Jobson filed a Reply to Appeal; 3. On 14 November 2017 the Tribunal conducted a call over in respect of the appeal and made directions for the parties to file and serve their material in support of, or in opposition, to the appeal; 4. On 17 November 2017 Wholesale Auto City filed an application to set aside or vary the Tribunal decision made on 26 September 2017, being an application under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). We note, incidentally, that reg 9(5) provides that a party may not make an application for an order under this clause if an appeal has been lodged or determined. Notwithstanding reg 9(5), the set aside application was considered by the Tribunal and ultimately dismissed; and 5. On 28 November 2017 the Appeal Panel of the Tribunal considered an application by Wholesale Auto City to stay the operation of the orders made on 26 September 2017. There was no appearance by Ms Jobson and the Tribunal made an order staying the operation of the orders made on 26 September 2017 until further order. The Notice of Appeal and Appellant's Submissions 1. The grounds of appeal have been set out above. Although the Tribunal had made directions for Wholesale Auto City to file its material in support of the appeal by 14 November 2017, no submissions have been received. Respondent's Submissions 1. Ms Jobson provided material to the Tribunal which was received on 22 December 2017. At the hearing of the appeal she said that that material was intended to be considered both in opposition to the set aside application (i.e. the application under reg 9 of the Regulation referred to above) and in opposition to this appeal. That material merely included the evidence which she had previously supplied to support the application which led to the orders of 26 September 2017. The Appeal Hearing 1. At the appeal hearing Mr Drury appeared for Wholesale Auto City and Ms Jobson appeared by telephone. 2. Mr Drury submitted that the damage allegedly caused to the vehicle was largely caused by a company called North West which arranged the carriage of the vehicle from the place where it was held by Wholesale Auto City to the place of delivery nominated by Ms Jobson. He also said that to the extent that there was something wrong with the gear box of the vehicle, his company would be prepared to fix the gear box. 3. Mr Drury informed the Appeal Panel that Wholesale Auto City had "changed hands". He started with the business at the end of May 2017. From then he took on the responsibility of dealing with disputes of the kind raised by Ms Jobson. He said that Mr James had left the company and that he thought Mr James left in August 2017. He also said that Wholesale Auto City had a road worthy report provided at the time of sale. That report was not in evidence. He submitted that the damage to the vehicle was caused by North West whilst the vehicle was in transit and that because Ms Jobson had paid for the carriage she should look to North West for redress. Respondent's Submissions 1. Ms Jobson submitted that the price she paid for the vehicle ($5,000.00) included a component in respect of the carriage by North West. She said that she paid Wholesale Auto City the money required to acquire the vehicle and for the carriage to be arranged by Wholesale Auto City. It arranged with North West to deliver the vehicle to her. 2. Ms Jobson also said that the evidence relied upon by the Member in coming to the Decision published on 26 September 2017 had been copied and served on Wholesale Auto City by posting that material to the company at its address in Minchinbury. The vehicle is presently still in her possession. She says it is not capable of being driven and is not registered. Appellant's Reply Submissions 1. Mr Drury did not make any submissions in reply. Decision 1. In our view, the appeal should be dismissed and the stay lifted for the reasons which follow. 2. The only ground of appeal raised by Wholesale Auto City is that its employees "were not able to attend the hearing". There is no firm evidence that Wholesale Auto City was not aware of the hearing. Mr Drury submitted that he did not know of the hearing, but he did not submit that other employees were unaware of the hearing. In particular, he acknowledged that he did not know whether Mr James knew of the hearing. Although he stated that Mr James had left the company in August 2017, it appears that he was mistaken in that regard because the Notice of Appeal is signed by Mr James and dated 10 October 2017. 3. There is some ambiguity as to the precise ground of appeal put by Wholesale Auto City. On the one hand, the Notice of Appeal states that "we were not able to attend the hearing". That leaves open the possibility that someone within the company knew of the hearing but was not able to attend. On the other hand, Mr Drury submitted that he was the person responsible for dealing with disputes and that he did not know of the hearing. The application to set aside filed on 17 November 2017 was signed by Mr Drury and in it he states: I did not receive notice to attend Tribunal on 26 September 2017. 1. In our view, Wholesale Auto City has not satisfied us that the company was not properly served with notices issued by the Tribunal, and in particular, the notice of the hearing on 26 September 2017. Nor are we satisfied that Mr James was not aware of the hearing on 26 September 2017. To elaborate: 1. Mr James clearly knew of the application (see his email of 13 April 2017); 2. Ms Jobson says she served her evidence by registered post on Wholesale Auto City. There is nothing to contradict this evidence; 3. Wholesale Auto City clearly received the orders made on 26 September 2017. The Notice of Appeal acknowledges receipt on 27 September 2017; and 4. Mr James appeared to be still with Wholesale Auto City on 26 September 2017. He signed the Notice of Appeal which states that "we were not able to attend the hearing". It does not state he was not aware of the hearing. 1. Accordingly, we are of the view that Wholesale Auto City has not proven that it was not (that is its employees were not) aware of the hearing on 26 September 2017. 2. Appeals from decisions made in the Consumer and Commercial Division of the Tribunal may be brought as of right on any question of law or any other grounds only with leave: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The Appeal Panel may grant leave only if it is satisfied that a substantial miscarriage of justice may have been suffered 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. Here, if the Notice of Appeal and the submissions of Mr Drury are interpreted to mean that the hearing on 26 September 2017 occurred without notice being given to Wholesale Auto City, then what is being submitted is that Wholesale Auto City was denied procedural fairness. That is a question of law and the leave of the Appeal Panel is not required. 2. We are of the view that this ground of appeal fails for the reasons given above. 3. Even if we are wrong in the conclusion that we have come to (namely that we are not satisfied that Wholesale Auto City did not know of the hearing), we do not think that the Decision made by the Tribunal would have been any different had Wholesale Auto City been present at the hearing. The submission put forward by Mr Drury was that the state of the vehicle on delivery was largely caused by North West. However, he was unable to demonstrate that the contractual arrangement by which North West was engaged was one between North West and Ms Jobson. Indeed, the evidence from Ms Jobson (which Mr Drury did not dispute) was that Wholesale Auto City arranged for North West to undertake the carriage and it was paid by Wholesale Auto City (albeit with monies supplied by Ms Jobson). In those circumstances, it is our view that the appropriate party entitled to redress from North West is Wholesale Auto City, not Ms Jobson. 4. In the above circumstance, we are of the opinion that had Mr Drury been present on 26 September 2017 and put forward the arguments which he put to us, the Decision would have been the same. 5. Having regard to the above conclusion, we are of the opinion that the Decision does not reveal that Wholesale Auto City has suffered a substantial miscarriage of justice in the sense referred to in cl 12 of Sch 4 of the NCAT Act. 6. Therefore, we must make the orders set out below. Orders 1. The Appeal Panel makes the following orders: 1. The appeal is dismissed; and 2. The order made on 28 November 2017 staying the operation of the orders made on 26 September 2017 is lifted. ********** ​ 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: 22 January 2018