Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pope v Telstra Corporation Limited [2019] NSWCATAP 178 Hearing dates: 11 June 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member K Ransome, Senior Member Decision: 1. Appeal upheld. 2. The decision below is set aside. 3. The proceedings are to be returned to the Tribunal (differently constituted) for hearing according to law limited to (subject to any further leave being sought from and granted by the Tribunal) the appellant's claims for: (a) $48.50 per day for the period 14 August 2017 to 17 December 2018; and (b) $9,000 for legal costs the appellant says were incurred by her in certain proceedings in the Queensland Magistrate's Court. Catchwords: CIVIL PROCEDURE – hearings – procedural fairness – notice of hearing Legislation Cited: Civil and Administrative Tribunal Act No.2 2013 (NSW), s 80(2)(b), clause 12(1)(a) of Schedule 4 Cases Cited: Collins v Urban [2014] NSWCATAP 17 JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 Moloney v Taylor [2016] NSWCA 199 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Texts Cited: Nil Category: Principal judgment Parties: Kathy Pope (appellant) Telstra Corporation Limited (respondent) Representation: K Pope (Appellant in person) S Kanapathy, authorised Telstra representative (Respondent) File Number(s): AP 19/13243 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 February 2019 Before: P Harris, Member File Number(s): GEN 18/43527 and GEN 18/54152 REASONS FOR DECISION 1. The appellant appeals from a decision of the Tribunal's Consumer and Commercial Division made in favour of the respondent rejecting the appellant's claims for compensation in relation to an allegedly defective landline telephone service provided by the respondent. 2. The hearing before the Tribunal occurred in the absence of the appellant. We are satisfied that this absence arose from unintentionally misleading communications concerning the hearing date, and, in the circumstances of this case, should result in the appeal being upheld. Background 1. The appellant moved to a remote rural location in New South Wales to live. She contracted with the respondent to provide a landline telephone service. The service provided was, the parties agree, faulty for some period of time. 2. The real dispute between the parties is the exact period or periods during which the telephone service was faulty and what compensation should be paid in relation to that period or periods. 3. The appellant commenced two sets of proceedings in the Tribunal. Both concern the same allegedly faulty telephone service. There is some overlap but also some differences between the two proceedings in relation to the compensation sought. Those differences are not relevant to the determination of this appeal. 4. The Tribunal sensibly decided that the two proceedings should be heard together. That state of affairs should continue. 5. Various directions were made for the filing and exchange of the evidence both parties intended to rely upon in the proceedings. 6. As part of the process of preparing her case, the appellant sought compulsory production by Telstra of various of its business records by applying to the Tribunal to issue a summons pursuant to s 48 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (the "NCAT Act"). 7. The appellant sought those documents in order to seek to corroborate her case as to the period or periods of time during which she alleges the telephone service was faulty and as to when it was that she reported the faults. 8. Relevantly, on 19 December 2018 the Tribunal sent to the appellant two documents: 1. a "Notice of Directions Hearing"; and 2. a "Notice of Return of Summons Hearing". 1. The former related to the hearing of the substantive proceedings. The latter related to the summons for production of documents. Both used the word "hearing". Both documents appointed 15 January 2019 as the date for their respective hearings, the former being set for 2.15 pm and the latter set for 2.45 pm. 2. On 15 January 2019 the hearing of the summons (for production of documents) was "adjourned to a date to be fixed". The respondent was directed to produce documents within 14 days and the parties were informed that a "separate written notice of the new hearing date will be sent to you in the near future". 3. On 17 January 2019 the Tribunal sent to the appellant a "Notice of Return of Summons Hearing". That notice said that the "matter" (being the summons to produce documents) was listed on 7 February 2019 for the production of documents and for the Tribunal to determine access to any documents produced. The Tribunal noted that the parties were to appear by telephone. 4. On the same date, being 17 January 2019, the Tribunal sent to the appellant (in both of the substantive proceedings commenced by her) two "Notice of Hearing". These notices said that the hearing would take place on 20 February 2019 at 9.15 am. 5. On 7 February 2019, the day appointed for the hearing of the summons (for production of documents), the Tribunal emailed to the appellant a "Notice of Order". That notice said: "On 07-Feb-2019 the following orders were made: By Determination of member (sic), on 07 February 2019 the hearing was adjourned to a date to be fixed by the Registrar for the formal hearing of the matter. A separate written notice of the new hearing date will be sent to you in the near future. ..." 1. It appears, despite the terms of the notice quoted above, no "written notice of the new hearing date" was sent to the appellant. 2. The appellant did not receive any written notice of a new hearing date for the summons. 3. Those familiar with the Tribunal's forms and processes would know that this notice was referring to the hearing of the summons to produce documents. The appellant says that she understood this notice to be a reference to the hearing of the substantive proceedings (listed for 20 February 2019). It was because of her misunderstanding that she did not appear at the hearing of the substantive proceedings on 20 February 2019. 4. We accept the appellant's explanation for her non-appearance at the hearing on 20 February 2019. 5. Her explanation is credible. She is a layperson unfamiliar with the processes and jargon of the Tribunal. 6. The notice dated 7 February 2019 simply refers to the "hearing of the matter" but does not clearly identify the "matter" it was referring to. 7. Notices relating to the summons and the substantive proceedings both use the word "hearing" without a further descriptor such as "hearing of the summons" or "hearing of the substantive proceedings" in order to clearly differentiate between the two. 8. The heading of the notice dated 7 February 2019 was also potentially misleading, it being headed: "Application to the Tribunal concerning KATHY POPE – TELSTRA CORPORATION LIMITED." 1. To a layman, there were two applications. The application (being the summons for production of documents) and the application(s) (being for substantive relief). 2. There is no reference to "summons" in the heading of the notice dated 7 February 2019. There is a reference to "summons" in a note at the foot of the document [that the "applicant (sic) has provided copies of summons documents direct to the applicant"] but neither that reference, nor any other part of the document, makes clear that the document is referring to the hearing of the summons and not to the hearing of the substantive proceedings. Indeed, the note itself says that the documents have been provided directly to the applicant and that the "applicant does not seek an access order of the documents held by the Tribunal". This would indicate that the summons issue was finalised and there would therefore be no need for any further hearing on the summons. 3. On the day of the hearing the Tribunal attempted to telephone the appellant but without success. 4. At 10.17 am that day (just over one hour from the due start time of the hearing) the Tribunal received an email from the appellant asserting that she was unaware of the hearing. We infer this email was brought to the attention of the Tribunal member hearing the substantive proceedings after he had concluded the hearing in the absence of the appellant. 5. The appellant has informed us, and we accept, that she desires to have her dispute with Telstra heard by the Tribunal. The filing and prosecution of this appeal corroborates this expression of intent, as does her contemporaneous email to the Tribunal of 20 February 2019. Decision 1. The appellant's Notice of Appeal does not encapsulate, in legal terms, her complaint. The Civil and Administrative Tribunal is not a court and is required to conduct itself with minimal formality and to reach decisions according to the substantial merits of each case, and not by reference to legal forms or technicalities – Moloney v Taylor [2016] NSWCA 199 per the Court at [30]. 2. The substantial merits of this appeal concern whether the appellant has been denied procedural fairness in that she did not have the opportunity to fairly present her case. We note that s 38(5)(c) of the NCAT Act requires the Tribunal to take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard. 3. In our opinion the appellant did not have a reasonable opportunity to present her case and was denied procedural fairness. In saying that we cannot criticise the actions taken by the Tribunal member who, in our opinion, acted appropriately in the circumstances. The Tribunal was not to know of the misleading impression the correspondence to which we have referred caused. 4. It is true that the Tribunal examined the material which had been filed and exchanged by the appellant before deciding to dismiss her case, but it appears to us that the nature of this case is such that the documents do not tell the whole story. 5. Therefore, putting legal technicalities and form to one side, it is our opinion that the appellant should be granted leave to appeal on a ground other than one involving a question of law. In our opinion an injustice which is reasonably clear occurred, and the decision was not fair and equitable because of the denial of procedural fairness – see Collins v Urban [2014] NSWCATAP 17 at [65] – [84], s 80(2)(b) and clause 12(1)(a) of Schedule 4 of the NCAT Act. 6. As explained by the appellant on the appeal, and despite what is set out in each of her applications which are the subject of this appeal, she now seeks compensation for the following: 1. $48.50 per day (as set out in the respondent's Customer Service Guarantee) for the period 14 August 2017 to 17 December 2018 (during which period she alleges the telephone service was faulty, and which followed her report of the fault to the respondent); and 2. $9,000 for legal costs she says were incurred by her in proceedings in the Queensland Magistrate's Court as a result of not being able to be contacted (allegedly due to her faulty telephone service). 1. The respondent acknowledges that should the appellant's telephone service be found to have failed to meet the standard set under the Universal Service Obligation ("USO") for more than three full working days after a report of a relevant fault, it may be liable to the appellant for the amounts set out in the respondent's Customer Service Guarantee. 2. The appellant and respondent agreed that the telephone service was faulty for a period of time up to about 9 August 2017. They entered into a Deed of Release pursuant to which the respondent agreed to pay the appellant a certain amount for the preceding period when the service was faulty. 3. The respondent also accepts the appellant's telephone service was faulty for the period 18 December 2018 until 7 January 2019 (when the service was repaired). Compensation for that period has been offered but not accepted (as the appellant says the period is much longer). 4. Thus, the real issue between the parties is whether and for what period or periods was the telephone service faulty (meaning, a failure to meet the standard set under the USO) after 14 August 2017, and an associated issue is when (if at all) the appellant reported such a fault to the respondent. 5. We note that the appellant has expressly abandoned any claim against the respondent for lost income allegedly caused by the faulty telephone service. 6. The usual remedy for denial of procedural fairness is a new trial – Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. Denial of that remedy would usually only occur if we were confident that there would not be a different outcome – see JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 per Gleeson JA, with whom Bell P and Leeming JA agreed, at [49] – [57]. That discretion to refuse a new trial is not lightly exercised – JE at [54]. 7. On the material available to us we are not confident, to the extent necessary, that if the appellant is given the opportunity to argue her case the same result will occur. That is not to say that she will succeed on her case, or even that she has a good case, only that it is sufficiently possible that she may succeed that she should be given the opportunity to present her case, an opportunity previously denied to her. Conclusion 1. The appeal is upheld. The decision of the Tribunal below is set aside. Both proceedings should be re-heard by the Tribunal (differently constituted) limited to the two claims for compensation to which we have referred at [34] above (in the absence of leave being sought from and granted by the Tribunal below to add any additional claims). Orders 1. Appeal upheld. 2. The decision below is set aside. 3. The proceedings are to be returned to the Tribunal (differently constituted) for hearing according to law limited to (subject to any further leave being sought from and granted by the Tribunal) the appellant's claims for: 1. $48.50 per day for the period 14 August 2017 to 17 December 2018; and 2. $9,000 for legal costs the appellant says were incurred by her in certain proceedings in the Queensland Magistrate's Court. ********** 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. 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: 16 July 2019