Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NSWCATAP 143 Hearing dates: 31 May 2018 Date of orders: 06 June 2018 Decision date: 06 June 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: 1. The appeal is allowed and the order made on 13 December 2017 is set aside. 2. The proceedings are remitted for rehearing by a differently constituted Tribunal. 3. The Appeal Panel makes the following directions in the remitted proceedings: (a) On or before 30 June 2018, the applicants (Morgans) are to file and serve all evidence in support of their claim, including all documents relied on and statutory declarations or witness statements from all witnesses; (b) on or before 14 July 2018, the respondent (Shardlan) is to file and serve all evidence in response to the claim, including all documents relied on and statutory declarations or witness statements from all witnesses; (c) the documents required by each party pursuant to orders (a) and (b) are to be placed in a folder, which is to be indexed and paginated and placed in a logical order; (d) a party must ensure all of their witnesses attend the hearing for the purpose of cross examination unless the other party has advise them and the Tribunal in writing that the particular witness is not required; (e) in the event a party fails to comply with these directions, they may not rely on any documents or witness statements served late without leave of the Tribunal, which leave will only be granted in exceptional circumstances; (f) the Tribunal, on remittal, may vary these directions if appropriate; (g) the remitted proceedings are to be fixed for hearing on a date to be determined by the registrar of the Consumer and Commercial Division Catchwords: PROCEDURAL FAIRNESS – Opportunity to cross examine – Oral quotation – Dispute regarding what was said – subsequent conduct of one party consistent with particular conversation – chance to challenge evidence explaining error in invoicing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Gallo v Duflou [2014] NSWCATAP 115 Lee v Cha [2008] NSWCA 13 Raslan v Pan [2015] NSWCATAP 12 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 2014 CLR 1 Category: Principal judgment Parties: First Appellant: Jim Morgan Second Respondent Shirley Morgan Respondent: Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga Representation: Appellant: In person Respondent: R Stumpf (Director) Solicitors: Not applicable File Number(s): AP 18/09589 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Opportunity Division Citation: Not applicable Date of Decision: 13 December 2017 Before: A Nightingale, General Member File Number(s): GEN 17/410179 reasons for decision Introduction 1. This appeal concerns the price paid for flooring which was supplied and installed at the appellants' premises (Work) in Lockhart by the respondent. 2. The appellants contend that they were given an oral quotation for the Work for a fixed amount of $6500.00, plus, if necessary, the additional cost of moving any furniture. The respondent says it provided an oral quotation for $7500.00. The appellants say they paid the full amount of $7500 by 2 instalments of $3250.00, as a deposit, and $4250.00 as the final payment. In relation to the final payment of $4250.00, the appellants say this payment was made in error, that they requested a refund of $1000.00 which was refused and that they commenced the proceedings to recover the amount of the overpayment form the respondent. 3. The proceedings were commenced in the Consumer and Commercial Division dated 6 September 2017. The proceedings were listed for conciliation in a group list, the parties failing to reach any settlement. Consequently, directions were made for the parties to file and serve evidence, the matter being fixed for hearing on 13 December 2017. 4. At the conclusion of the hearing, the Tribunal dismissed the appellants' application on the basis that the Tribunal was not satisfied a quotation had been provided in the amount of $6500.00. The appellants subsequently requested the Tribunal to provide written reasons for the decision. The reasons were provided on 25 January 2018. At [24] the Tribunal found, on the balance of probabilities, that the amount of the quotation was $7500.00 as contended by the respondent. In doing so the Tribunal accepted the evidence of Mr Ralf Stumpf, the director for the respondent, that the amount of the oral quotation was $7500.00 which was accepted by the appellants. 5. The appellants appeal this decision. Notice of Appeal and history of appeal proceedings 1. The appellants filed a Notice of Appeal which was dated 26 March 2018. This date would appear to be in error. However, there was no dispute in this appeal that the appeal had been commenced in time, namely 28 days after notice of the reasons for decision were received. 2. The appellants appeared in person at the hearing of the appeal and both made submissions. Mr Stumpf appeared for the respondent. 3. Essentially, the appellants raised two grounds of appeal. These are: 1. that the appellants were denied an opportunity to complete all of their evidence and make submissions and were not afforded an opportunity to cross-examine the respondent's witnesses; and 2. that the Tribunal was in error in determining the quotation was for amount of $7500.00, plus any costs associated with moving the furniture. 1. In relation to the hearing, the Appeal Panel was informed that no sound recording was available. Consequently, the parties were given an opportunity to provide evidence concerning what happened at the hearing as part of the material to be provided for the appeal. The appellants provided statutory declarations, said to record what happened at the hearing. The statutory declarations included evidence that the hearing had been disrupted because of the activation of a television and that it had been adjourned for a period of time. The appellants said that when the hearing resumed, the Tribunal did not give them an opportunity to complete their submissions or provide oral evidence. 2. In relation to this last point the Appeal Panel notes that in the proceedings at first instance, directions had previously been made for all evidence in chief from each of the parties to be in the form of a statutory declaration or witness statement. However, each of the appellants did not provide their evidence in writing, informing the Appeal Panel that they believed the directions made only referred to witnesses who were not parties to the proceedings. 3. The appellants also said they were not offered an opportunity to cross-examine the respondent's witnesses, in particular Mr Matthew Grentell, an employee of the respondent who had provided a statutory declaration concerning the circumstances in which the initial invoice of $3250.00, by which a deposit of 50% was requested, had been issued. The relevance of this evidence is that the appellants contended the amount of the invoice, being 50% of $6500.00 corroborated the evidence of the second appellant, Mrs Morgan, that the oral quotation was for $6500.00. However, the evidence from Mr Grentell was that this invoice had been issued in error, he having miscalculated the 50% deposit. Mr Grenfell said the invoice should have been issued for $3750.00 and that he had included the shortfall in the final invoice which was issued for $4250.00. 4. The appellants submitted that they were denied an opportunity to cross-examine Mr Grentell about the circumstances in which this invoice had been prepared and the involvement of Mr Stumpf (who had provided the oral quotation). The invoice for the deposit had been issued shortly after the quotation had been accepted, and we understand that the evidence sought to be adduced by cross-examination of Mr Grentell would relate to the probability of whether or not the conversation concerning the quotation was in the terms for which the appellants contended. 5. In relation to the second ground of appeal, the first appellant, Mr Morgan, explained the circumstances in which the quotation had been prepared. Mr Morgan submitted that there was a conversation about various per square metre rates for flooring. He said that, having regard to the rates advised by Mr Stumpf for the respondent and the gross amount calculated on area of the house and the square metres to be installed, the Tribunal should have concluded that it was more probable the oral quotation was for $6500.00 only. 6. In reply, in relation to the conduct of the hearing, the respondent did not agree with the appellants' assertion that the hearing had been adjourned for any lengthy period of time following activation of the television screen, or that the appellants were not given an opportunity to complete their evidence and submissions. 7. However, the respondent agreed with the appellants that the Tribunal did not, at any time during the hearing: 1. advise the parties that they had a right to cross-examine the other side's witnesses; or 2. offer the parties an opportunity to cross-examine the other side's witnesses as part of the hearing process. 1. Despite this agreement, the respondent's submission on this aspect was that the appellants had had an opportunity to present their case. 2. In relation to the terms of the quotation and the agreed price for the Work, the respondent relied on the evidence of Mr Stumpf as to the terms of the conversation and on the sketch and calculations of Mr Stumpf indicating an estimated pricing for all work as corroborating his evidence of the conversation. The respondent also relied on the evidence of Mr Grentell to explain the error in invoicing of the deposit. Consideration 1. This appeal raises two questions. These are: 1. Were the appellants denied procedural fairness?; and 2. Was the Tribunal in error in concluding the oral quotation was for $7500 and not $6500? 1. The first question raises a question of law for which there is a right of appeal. The second question concerns a factual dispute about what was said in the conversation whereby the oral quotation was given by Mr Stumpf to Mrs Morgan for which leave is required: see s 80(2(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act), Sch 4 cl 12 of the NCAT Act and Collins v Urban [2014] NSWCATAP 17. Were the appellants denied procedural fairness? 1. It is an agreed fact in this appeal that the parties were not offered an opportunity to cross-examine the other party's witnesses. In the absence of an available sound recording, there is no basis for us to otherwise conclude such an opportunity was otherwise given. 2. There is no doubt that the failure of the Tribunal to allow a party an opportunity to cross-examine may, in some situations, constitute a denial of procedural fairness: see Gallo v Duflou [2014] NSWCATAP 115 at [21]. Further, a failure of the Tribunal to explain to unrepresented parties its procedures, if requested to do so, or ensure a party has a reasonable opportunity to be heard may also constitute a denial of procedural fairness and/or a failure by the Tribunal to comply with its obligations under s 38(5) of the NCAT Act: see Lee v Cha [2008] NSWCA 13 per Basten JA at [48]. Where there is a relevant failure, it may also be necessary to consider whether or not any failure which has occurred has resulted in a practical injustice: Raslan v Pan [2015] NSWCATAP 12 at [28] referring to the decision of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 2014 CLR 1 at 13-14 [37]. 3. Having regard to the agreed fact, there has been a failure to afford procedural fairness by not offering the appellants and/or permitting the appellants to cross-examine witnesses, particularly Mr Grentell. 4. It is not appropriate for us to set out the questions which might have been asked by the appellants. However, it is necessary for us to determine whether or not there has been any practical injustice arising from the failure to afford the opportunity to cross-examine such as to necessitate appellate intervention. 5. It seems clear to us that the subject matter which the appellants indicated they would have addressed if given the opportunity to cross examine, namely the provenance of the invoice for the deposit in the sum of $3250.00, is relevant to the question of whether Mrs Morgan was given an oral quote for $6500.00 or $7500.00. The invoice was prepared at about the time the oral quotation was given, presumably in consequence of the conversation between Mrs Morgan and Mr Stumpf. One can presume that Mr Grentell prepared the invoice because of something he was told or given by Mr Stumpf. This evidence, which relates to facts surrounding the quotation, may go to the issue of both credibility of a witness and a factual matter, namely what was the amount of the oral quotation. 6. It follows that there has been a failure to afford procedural fairness and that there is an injustice which should be corrected. 7. Consequently, the order dismissing the proceedings should be set aside and the proceedings are remitted for rehearing. Was the Tribunal in error in concluding the oral quotation was for $7500 and not $6500? 1. In light of the conclusion we have reached above, it is unnecessary and inappropriate to answer this question. Orders 1. The Appeal Panel asked the parties on several occasions during the course of the hearing of the appeal whether this matter was capable of settlement, the dispute concerning an amount of $1000. The Appeal Panel had offered an opportunity to the parties to meet to discuss a compromise of the claim. Unfortunately, no resolution could be achieved. 2. The Appeal Panel is unable to finally resolve this dispute in the absence of the original oral evidence and in the absence of any cross-examination of relevant witnesses. Regrettably, in these circumstances, it is left with no alternative other than to remit these proceedings for rehearing. It is hoped, in light of what has occurred, the parties might meet after receiving these reasons and try and resolve the dispute by agreement. Absent such agreement, it will be necessary to rehear the matter and for the parties witnesses to attend for the purpose of being cross-examined. 3. To facilitate the rehearing, it is appropriate for the Appeal Panel to make directions to avoid any further hearings, other than a final hearing. These directions should include a requirement for all witnesses (including the parties) to file and serve statutory declarations setting out any evidence in chief. In this regard, we note the appellants had a mistaken view that the directions originally made by the Tribunal at first instance to prepare the matter for hearing, which required statutory declarations or statements from all witnesses, did not include witnesses who were also parties to the proceedings. The directions we will make require all witnesses, including parties who are witnesses, to provide their evidence in chief by way of statutory declarations. In addition, all documents to be relied upon, including for the purpose of cross examination, should be provided by each party in a bundle which is indexed and paginated. In this way, the hearing time will be minimised, hopefully confined to relevant cross-examination and any closing submissions. 4. The Appeal Panel makes the following orders: 1. The appeal is allowed and the order made on 13 December 2017 is set aside. 2. The proceedings are remitted for rehearing by a differently constituted Tribunal. 3. The Appeal Panel makes the following directions in the remitted proceedings: 1. On or before 30 June 2018, the applicants (Morgans) are to file and serve all evidence in support of their claim, including all documents relied on and statutory declarations or witness statements from all witnesses; 2. on or before 14 July 2018, the respondent (Shardlan) is to file and serve all evidence in response to the claim, including all documents relied on and statutory declarations or witness statements from all witnesses; 3. the documents required by each party pursuant to orders (a) and (b) are to be placed in a folder, which is to be indexed and paginated and placed in a logical order; 4. a party must ensure all of their witnesses attend the hearing for the purpose of cross examination unless the other party has advise them and the Tribunal in writing that the particular witness is not required; 5. in the event a party fails to comply with these directions, they may not rely on any documents or witness statements, including those served, late without leave of the Tribunal, which leave will only be granted in exceptional circumstances; 6. the Tribunal, on remittal, may vary these directions if appropriate; 7. the remitted proceedings are to be fixed for hearing on a date to be determined by the Registrar of the Consumer and Commercial Division. ********** 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: 06 June 2018