Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jones v American Express Australia Limited [2019] NSWCATAP 30 Hearing dates: 6 November 2018 Date of orders: 25 January 2019 Decision date: 25 January 2019 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member A Suthers, Principal Member Decision: The appeal is dismissed Catchwords: Appeal – procedural fairness – Tribunal received unsworn evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) National Consumer Credit Protection Act 2009 (Cth) Fair Trading Act 1987 (NSW) Cases Cited: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Category: Principal judgment Parties: Richard Jones American Express Australia Limited File Number(s): AP18/34979 Publication restriction: Nil Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 02 August 2018 Before: G Bassett, Member File Number(s): GEN 18/19313 REASONS FOR DECISION 1. This is an internal appeal from a decision of the Consumer and Commercial Division of the Tribunal. It relates to a dispute between Mr Jones and American Express Australia Limited ("Amex"), wherein Amex has refused to allocate Qantas bonus reward points (the Points) to Mr Jones, upon his taking up a new card account. 2. Mr Jones says the nature of his contract with Amex entitled him to the Points and that Amex represented to him that he was eligible for the bonus points offer. Amex says Mr Jones is ineligible for the Points, due to an exclusion clause in the contract it has with Mr Jones. It denies the alleged representation. 3. The exclusion Amex relies upon to assert that Mr Jones is ineligible for the Points is that he held another account with it within 18 months prior to taking up the new account. The terms of the offer therefore made him ineligible for the reward points, which were part of a promotion for new customers. 4. Mr Jones says it was a company, of which he is the managing director, which previously held the account with Amex. He notes that the Company is a separate legal entity to him and says he is not precluded from receiving the Points on that basis. 5. On 2 August 2018, the Tribunal found for Amex and dismissed Mr Jones' claim. 6. From that decision, Mr Jones appeals. For the reasons below, we have dismissed the appeal. Background 1. Mr Jones is the director and shareholder of Kaleidoscope Constructions Australia Pty. Limited. ("Kaleidoscope"). Kaleidoscope held an account for an Amex card, described by Amex as a "Business Card," between October 2015 and January 2017. Amex says that, in accordance with its usual terms for small companies, it required Mr Jones as director of Kaleidoscope to be a joint account holder with the Company and to be jointly and severally liable for debts incurred on the Business Card account. 2. Mr Jones said that all amounts owing on the Business card account had been paid and it was no longer used. 3. Later, Mr Jones discovered that Amex was promoting an offer whereby customers subscribing to a new account, described as a Qantas American Express Ultimate card ("Qantas Card",) would receive 100,000 Qantas frequent flyer points when the Qantas Card was taken up, provided the customer met certain requirements, such as minimum spending on the Qantas Card in the first three months. 4. Mr Jones says he called AMEX, told them about the Business Card and was assured that this would not be a bar to him receiving the Points if the Qantas Card was approved. He says on the strength of that representation, he applied for the Qantas Card and it was issued. There is no dispute that Mr Jones met all of the other criteria to be eligible for the Points, save whether he qualified as a 'new customer', when taking up the Qantas Card. Jurisdiction 1. In addition to its arguments about Mr Jones being ineligible for the Points as he was not a new customer, Amex also argued at first instance, and before us, that the Tribunal had no jurisdiction to determine the matter. We note, however, that it did not file a Notice of Appeal seeking to overturn the Tribunal's decision that it had jurisdiction to hear the matter. Strictly speaking, it should have done so. We will briefly deal with its arguments in any event. 2. Amex says that the Tribunal has no jurisdiction by virtue of the Qantas Card being a "consumer credit card" which is regulated by the National Credit Code, a regulatory document under the National Consumer Credit Protection Act 2009 (Cth). It relies on s. 187 of the Act, which states, relevantly: Civil jurisdiction of courts (1) Jurisdiction is conferred on a court referred to in an item in the following table in relation to civil matters arising under this Act, subject to the limits on the court's jurisdiction (if any) specified in the item: Civil jurisdiction of courts Item Court on which civil jurisdiction is conferred Limits of jurisdiction 3 A superior court, or lower court, of a State or Territory The court's general jurisdictional limits, including limits as to locality and subject matter. 1. At first instance, the Tribunal found that it did have jurisdiction to determine the claim. It referred at [5] of its reasons to Section 79F (f) of the Fair Trading Act 1987 (NSW) ("FTA") conferring jurisdiction on the Tribunal to determine claims under the Australian Consumer Law (NSW) ("ACL") for services, which is defined in that section to include "the rights or benefits provided, granted or conferred between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking. At s 79F (h) of that Act, "the provision of credit" is defined as a service. 2. Amex submits that the phrase "the provision of credit" should be read so as to exclude credit regulated by the National Consumer Credit Protection Act. We see no reason to do so and we are satisfied the Tribunal has jurisdiction to determine the matter. 3. There are several reasons for this conclusion. Firstly, the claim between these parties is not a civil matter arising under the National Consumer Credit Protection Act, which regulates other aspects of the conduct of providers of credit than that complained of here. 4. Secondly, in case any doubt remained, s 23 of that legislation, relevantly, says: Concurrent operation intended (1) This Act and the Transitional Act (the Commonwealth credit legislation ) are not intended to exclude or limit the concurrent operation of any law of a State or Territory. 1. In this case we are satisfied that the matter is a consumer claim, within the meaning of s 79E of the FTA. It is a claim relating to the supply of services (being the provision of credit) by AMEX to Mr Jones. Mr Jones sought the award of the Points or, alternatively, payment of money to the value of those points. We do not think the Tribunal needed to consider whether the supply of services here involved those within s 79FE of the FTA (between a banker and its customer). Nevertheless, it was correct in its conclusion that the matter was a consumer claim and thus the Tribunal had jurisdiction pursuant to s 79 J of the FTA. The grounds of appeal 1. In his notice of Appeal, Mr Jones outlined his concerns about the decision he relies upon, but did not formulate grounds of appeal as might be expected of someone with legal training. We therefore attempted to distil from the material his grounds of appeal: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Mr Jones confirmed that we had done so accurately. 2. We are satisfied that two grounds were articulated sufficiently by Mr Jones, the first of which raises an issue of law, for which no leave to appeal is required: s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act".) That ground was as follows: 1. That he was denied procedural fairness because he was not given the opportunity to give his evidence to the Tribunal at first instance under oath, and that his evidence was rejected for that reason. 1. The second ground to be found in Mr Jones' material, and relied upon by him at the hearing, was: 1. That the Tribunal erred in finding that the Business Card account was a "card held in the previous 18 months" by Mr Jones, for the purpose of eligibility for the bonus reward points offer on the Qantas Card. 1. As this ground does not raise an issue of law, leave to appeal is required. 2. Since this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, cl 12(1) of Schedule 4 to the NCAT Act applies and leave to appeal may only be granted if we are satisfied Mr Jones may have suffered a substantial miscarriage of justice 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. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [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 … 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. Even if we are satisfied as to the requirements of cl 12(1) of Sch 4, we must still consider whether to exercise our discretion to grant leave to appeal: Pholi v Wearne [2014] NSWCATAP 78 at [31]. Ground one - That Mr Jones was denied procedural fairness because he was not given the opportunity to give his evidence to the Tribunal at first instance under oath, and that his evidence was rejected for that reason 1. It is accepted by the parties that Mr Jones was not required by Tribunal to give an oath or make an affirmation before giving evidence to the Tribunal. 2. Notwithstanding this, Amex raised no objection to Mr Jones giving his evidence without being sworn. Nor did it suggest that less weight should be given to his evidence for this reason. Mr Jones acknowledges that the Member allowed him to give all the evidence he wished to give and the reasons make it clear that evidence was taken into account. It was within Tribunal's discretion to determine the procedure adopted by the Tribunal in the conduct of the hearing and he was not bound to adopt the rules of evidence: ss 38 (1) and (2) NCAT Act. The Member was entitled to rely upon s 71 of that Act, which makes it an offence for someone to provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect. 3. The Tribunal did not find that a representative of Amex had misrepresented to Mr Jones that he was eligible for the bonus reward points offer in a telephone call prior to him making the application for the Qantas Card, despite Mr Jones' assertion that this was the case. 4. The Member gave reasons for this, including Mr Jones' failure to support his allegation with other evidence, such as the date and time of the alleged call so that Amex could access and produce a recording of what was said. 5. There is nothing to indicate that the findings upon the evidence made by the learned Member were influenced by Mr Jones not taking an oath prior to giving his evidence. Nor is there any other suggestion that Mr Jones was denied procedural fairness by the Tribunal. 6. This ground is not established. Ground two - That the Tribunal erred in finding that the Business Card account was a "card held in the previous 18 months" by Mr Jones, for the purpose of eligibility for the bonus reward points offer on the Qantas Card 1. In essence, Mr Jones says that, as he and Kaleidoscope are different legal entities, Amex is precluded from saying that he is ineligible for the bonus reward points offer. 2. Determination of this issue requires an examination of the documents and any other representations which formed the terms of the contract for the Qantas Card and the previous contract relating to the Business Card. 3. Amex says Mr Jones was a cardholder on the Business Card, jointly and severally liable for debts incurred on the account with Kaleidoscope. 4. It provided a copy of the application for that card. It shows Mr Jones' name in a section titled "Section 1 – Basic Card Applicant Details." It goes on to record Kaleidoscope under the heading "Business details." 5. The Business Card- 'Cardmember' agreement (effectively the terms and conditions of the contract relating to the card) was also in evidence before the Tribunal. In the introduction to that document, it notes that: you and your mean the person who applied for this account but does not include a Supplementary Cardmember. We, us and our mean American Express Australia Limited (ABN 92 108 952 085). Business means that business entity (whether a company, partnership, sole trader, trust or other organisation) which is liable to us jointly and severally with you for all charges to the account and whose name may appear on the Card with your name. Card means any Card or other account access device we issue for the purpose of accessing your account. … By using your account (or by signing and keeping, or activating the Card), you, the business and any Supplementary Cardmembers agree to the terms of this agreement. 1. Later in that agreement, under the heading "Liability," it goes on to state that: You and the business are liable jointly and severally and promise to pay to us when due all amounts outstanding on your account… 1. The Tribunal's implicit finding that Mr Jones was a card member of the Business Card and accepted joint and several liability with Kaleidoscope for debts incurred on that account was unexceptional, in light of that evidence. 2. That position rendered Mr Jones ineligible for the bonus reward point offer, when he subsequently took up the Qantas Card. 3. Amex provided a copy of one form of advertisement for the Qantas Card promotion. Whilst there was no evidence that Mr Jones saw that version, he agrees that he went to the internet to look up the terms and conditions of the offer. It is not asserted by Mr Jones that the terms he saw were different to those in the advertisement. Those terms note, relevantly, that the: Offer is only available to new American Express Card Members who apply online for the Qantas American Express Ultimate Card by 2 October 2017, are approved and spend $1,500.00 on eligible purchases on their new card in the first 3 months from the card approval date … Card members who currently hold or have previously held a Card product issued by American Express Australia Limited, in the preceding 18 month period are ineligible for the Bonus Qantas Points offer… 1. Amex says that these terms were the only ones used for the promotion of this offer. We accept that evidence, given that the advertising promotion encompasses the entire terms of the offer and where there is no available evidence to the contrary. 2. Mr Jones acknowledges that he accessed the terms of the offer before applying for the Qantas Card. We are satisfied, on that basis, that these terms were incorporated into the contract for the Qantas Card and, as decided by the Tribunal, rendered Mr Jones ineligible for the bonus reward points offer. 3. No error on this ground is established. There is no reason for us to grant leave to appeal on that basis. 4. The appeal should be dismissed. Orders 1. The appeal is dismissed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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