Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Como Leather Pty Ltd v Kerr [2019] NSWCATAP 268 Hearing dates: 10 September 2019 Date of orders: 07 November 2019 Decision date: 07 November 2019 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member G Sarginson, Senior Member Decision: 1. Stay of orders 1 and 2 of the Tribunal below made on 25 July 2019 is lifted. 2. Leave to appeal in relation to Ground 3 is refused. 3. Appeal dismissed. Catchwords: CONSUMER LAW – misleading or deceptive conduct – adequacy of reasons - representation as to material – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 62(2), 62(3), 80(2)(b), clause 12(1)(b) and (c) of Schedule 4 Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Category: Principal judgment Parties: Como Leather Pty Ltd (Appellant) Christine Kerr (First Respondent) Trevor Kerr (Second Respondent) Representation: Kylie Jordemir (Director of the Appellant) Respondents (Self-represented) File Number(s): AP 19/31468 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 June 2019 Before: S Hanstein, General Member File Number(s): GEN 19/14172 reasons for decsision 1. The appellant appeals from a decision of the Tribunal's Consumer and Commercial Division in which the Tribunal ordered the appellant to pay the respondents the sum of $4,200 and to collect the dining table the appellant sold to the respondents. 2. The Tribunal found that, prior to their purchase of the table, the appellant had represented to the respondents that the table was made of natural Italian marble, that this representation was misleading because the table was made of something other than natural Italian marble, and that the respondents would not have purchased the table but for this misleading representation. 3. The Tribunal ordered the appellant to refund the purchase price of the table and to collect the table from the respondents. 4. For the reasons that follow we are of the opinion that the appeal should be dismissed. Additional Evidence 1. Both parties sought to tender evidence on the appeal that had not been tendered in the hearing below. 2. That additional evidence fell into one of two categories. First, evidence concerning a number of subsequent interactions between the appellant and the respondent but which are irrelevant to the issues before the Tribunal below and the issues on this appeal. Second, evidence which was relevant to the issues below but which was not tendered to the Tribunal. 3. We rejected the tender on the appeal of the additional evidence from both parties. The first category evidence was irrelevant. The second category is not permitted unless it was not reasonably available to the party at the time of the hearing per clause 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). It is apparent that the evidence was reasonably available at the time and so does not meet the requirements for admissibility on the appeal. Grounds of Appeal 1. The appellant appeals on the following grounds (as set out in its written submissions dated 23 July 2019): 1. adequacy of reasons; 2. denial of procedural fairness; 3. decision was against the weight of evidence. 1. The first two grounds involve questions of law and so the appellant needs no leave (permission) to appeal on those grounds – s 80(2)(b) of the NCAT Act. The third ground does not involve a question of law and so leave to appeal is required in relation to that ground – s 80(2)(b) and cl 12(1)(b) of the NCAT Act. Ground 1 1. The appellant submits that the Tribunal below erred in law in failing to provide proper reasons. The appellant submits that the reasons of the Tribunal omitted any reference to the evidence of the appellant and thus it appears as if the Tribunal did not consider it. In particular, the appellant submits that the Tribunal's reasons do not contain any reference to the "satisfaction and Completion Notification" completed by the respondents and thus it appears as if the Tribunal did not consider that evidence. 2. Written reasons for the Tribunal's decision were requested by the appellant pursuant to s 62(2) of the NCAT Act and were provided by the Tribunal. 3. General principles to be applied when inadequacy of reasons is alleged include: [1] 1. that it is essential for a decision maker to expose the reasons for resolving a point critical to the contest between the parties; 2. the reasons must do justice to the issues posed by the parties' case and the decision maker should enter into the issues canvassed and explain why one case is preferred over another; 3. the extent and content of reasons will depend upon the particular case under consideration and the matters in issue; 4. while there is no obligation to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties; 5. whilst it is unnecessary to refer to relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered and whilst a failure to refer to some of the evidence does not necessarily, indicate that a decision maker has failed to discharge the duty which rests upon him or her, evidence which is important or critical to the proper determination of the matter should be referred to in a decision and where it is not an appellate court may infer that the decision maker overlooked the evidence or failed to give consideration to it; 6. aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed. [2] 1. In relation to reasons given by the Tribunal other relevant considerations include: 1. that the minimum characteristics the Tribunal's reasons (requested under s 62 of the NCAT Act) must possess are set out in s 62(3) of the NCAT Act, namely: [3] 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. the Tribunal's understanding of the applicable law; 3. the reasoning processes that lead the Tribunal to the conclusions it made; 1. the quantity and detail necessary for the reasons to be adequate should take account of the fact that the Tribunal is a tribunal and not a court; [4] 2. in judging the quality of the reasons required it is generally accepted that the sheer volume of work undertaken by the Tribunal is such that a more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court; [5] 3. in considering the quantity and detail of the reasoning process that must be exposed pursuant to s 62(3) an Appeal Panel should take into account that: [6] 1. the Tribunal is not required to submit the material before it to the most meticulous analysis and provide a detailed exposition of every aspect of the evidence and the arguments, but should provide at least a basic explanation of the fundamental reasons which led the Tribunal to its conclusions; 2. the reasons must be read fairly and as a whole; 3. the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error; 4. there should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips; 1. the function of an Appeal Panel is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. [7] 1. The essential elements of the respondents' case against the appellant were: 1. was there a representation; 2. was that representation misleading or deceptive; and 3. did the respondents rely upon the misleading representation to their detriment? 1. Applying the principles to which we have earlier referred to the Tribunal's reasons in relation to each of those elements, and reading the Tribunal's reasons as a whole, in our opinion the Tribunal's reasons met (and in our opinion surpassed) the minimum standard necessary. 2. The Tribunal set out the evidence given by the respondents as to the relevant representation made to them by Mr Jordemir, a director of the appellant. 3. The appellant submits that the reasons of the Tribunal omitted any reference to the evidence of the appellant, but this submission is incorrect. The evidence was given by Mr Jordemir, and his evidence (referred to by the Tribunal at [21] and [26] of its reasons) was to the effect that he could not recall what was said when he met the respondents. 4. The Tribunal noted that Mr Jordemir said that he would not have said that the table was made of Italian marble, but also noted that Mr Jordemir's subsequent email did in fact state that the table was marble (the Tribunal found, based on expert testimony, that the table was not made of marble, whether Italian or otherwise). 5. The Tribunal set out the evidence which persuaded it that the representation was misleading. The Tribunal expressly referred to the expert testimony from an experienced stonemason to the effect that the table was not made of natural marble. 6. The Tribunal noted that the appellant did not tender any documents or other information which had been provided to the respondents before their purchase as to the composition of the table. The Tribunal referred to the appellant's evidence from an importer who tested a table with the same model name, but said it was not persuaded by that evidence because it was not satisfied the composition of the table tested and the table sold to the respondents was the same, and thought the photographs provided could give a false impression. 7. As to reliance, the Tribunal referred to the evidence given by the respondents and why the Tribunal found this evidence persuasive. The reasoning on this aspect was limited, but sufficient (see [13(5)] above). 8. The appellant submits that the Tribunal's reasons do not contain any reference to the "Satisfaction and Completion Notification" completed by the respondents. This is a reference to a document presented to a customer upon delivery of an item and which said, "Goods received & delivered to my satisfaction". Upon presentation to the customer, the customer signs it. 9. This document was irrelevant to the issues in the case because it could only be evidence that, assuming the customer inspected the table on delivery, that there were no obvious signs of damage, and that the item had in fact been delivered. The respondents' case was not that it was damaged when it was delivered, but that it was not made of the material represented. To that issue the document did not speak. 10. The appellant also submits that no reference was made to the evidence from Merlino Pty Ltd. That company was somehow involved in the importation of the table (exactly how is unclear), but the evidence was referred to at [23] and [24] and considered at [31] – [33] of the Tribunal's reasons. 11. We reject Ground 1. Ground 2 1. The appellant submits that it was denied procedural fairness. It submits that the denial of procedural fairness arose by reason of: 1. its inability to produce evidence that the table was made of Italian marble or natural stone; 2. the fact that the respondents' evidence as to the representation was from memory and "no evidence was produced for the conversation nor was it issued with an affidavit"; and 3. the "product was order as per sample, and inspected by respondent. Only due to damage caused by respondent, initiation of these proceedings had commenced and the member advising of misleading and deceptive conduct by Appellant." 1. It is not ordinarily unfair if a party is unable to produce evidence of a fact if it has been given sufficient opportunity to do so, and no such lack of opportunity has been alleged in this case nor is any such lack of opportunity apparent. Further, the appellant could have produced evidence of the composition of the table by asking for access to the table to be inspected by an expert of its choosing. 2. There is nothing unfair about the respondents giving evidence from recollection. Recollections of what witnesses have seen or heard is just as much evidence as are documents. Generally speaking, contemporaneous documents are usually more reliable because, unlike recollections, they are not prone to change over time. But be that as it may, recollections are evidence. Further, the evidence of those recollections was preceded by an oath or affirmation to tell the truth. 3. We are not sure we quite understand the third submission (quoted at [26(3)] above). 4. It is irrelevant to the case whether or not the product was ordered by sample. Mr Jordemir said the table was made of Italian marble and the expert evidence accepted by the Tribunal was that it was not. Inspection of the table is irrelevant because the respondents were not experts in distinguishing between Italian marble and non-natural stone products. 5. There was nothing unfair in the member advising of misleading or deceptive conduct (assuming, without deciding, that this submission is correct as we were not provided with a sound recording of the hearing) as it is the Tribunal's obligation to attempt to discern the legal basis for a non-legally qualified or represented party's case. 6. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. The same observations apply with equal force to the Tribunal at first instance. 2. Further, the respondents' application expressly refers to the representation that the table was marble, that the respondents alleged it was not marble and that they believed they had been misled. In substance, that was the same as alleging misleading or deceptive conduct as provided in the Australian Consumer Law. 3. We reject Ground 2. Ground 3 1. The appellant submits that the decision was against the weight of evidence. 2. The appellant submits that the finding that the respondents were entitled to reject the table was against the weight of evidence given the evidence that the table was: "... delivered to the Respondent home in original packaging that had the suppliers name and details of manufacturer on this. Including 'Made in China'. Upon accepting these goods the respondent was entitled to reject these goods." 1. The appellant submits that there was no evidence from the respondents to support the above finding of fact. 2. We do not quite understand the submission. It perhaps derives from oral reasons being given at the conclusion of the hearing and a layperson's imperfect recollection of what was said (we were not provided with a sound recording) as nothing to this effect appears in the written reasons. 3. Suffice to say the case was not about being entitled to reject the goods. The case was about a representation made by Mr Jordemir which was found to be misleading and but for which the respondents would not have purchased the table. Having found in favour of the respondents on that case the Tribunal made orders restoring the parties to the position they would have been in had the representation not been made. 4. For those reasons we are unpersuaded that the appellant may have suffered a substantial miscarriage of justice by reason of the matters alleged (which is required for the grant of leave pursuant to cl 12(1) of Schedule 4 of the NCAT Act). 5. Accordingly, we refuse leave to appeal in relation to Ground 3. Conclusion 1. Having rejected all grounds of appeal we order: 1. Stay of orders 1 and 2 of the Tribunal below made on 25 July 2019 is lifted. 2. 2. Leave to appeal in relation to Ground 3 is refused. 3. Appeal dismissed. ********** 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 Endnotes 1. Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed at [58]-[59] and [61]-[62]. 2. New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P, with whom Ward J agreed, at [68]. 3. Ibid at [71]. 4. Ibid at [68]. 5. Ibid at [70] and the further remarks of Ward J at [114]. 6. Ibid at [73] and [77]. 7. New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P, with whom Ward J agreed, at [66]. 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: 07 November 2019