Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd [2020] NSWCATAP 67 Hearing dates: 2 April 2020 Date of orders: 22 April 2020 Decision date: 22 April 2020 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member Dr J Lucy, Senior Member Decision: The appeal and application for leave to appeal is dismissed for failure to appear pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: PRACTICE and PROCEDURE – appellant failed to appear at hearing of appeal – whether appeal to be heard and determined on an ex parte basis, or dismissed for failure to appear Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Armour v Bate [1891] 2 QB 223 Collins v Urban [2014] NSWCATAP 17 Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 Stead v State Government Insurance Commission of Australia [1986] HCA 54; (1986) 161 CLR 141 Texts Cited: None cited Category: Principal judgment Parties: 1950 Investments Pty Ltd t/as Hogan Prestige Garage (Appellant) Wabbits Pty Ltd (Respondent) Representation: Solicitors: A Hogan (Agent) (Appellant) F Kalyk (Agent) (Respondent) File Number(s): AP 20/04726 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 December 2019 Before: N Vrabac, Tribunal Member File Number(s): MV 19/42932 Reasons for decision 1. The appellant, 1950 Investments Pty Ltd t/as Hogan Prestige Garage, is a motor vehicle dealer licensed under the Motor Dealers and Repairers Act 2013 (NSW) (MDR Act). The appellant seeks to appeal a decision of the Tribunal, made in its absence, on 20 December 2019, that it pay the respondent, Wabbits Pty Ltd, the sum of $6,581.35 immediately. The decision related to a claim of the respondent concerning its purchase, in May 2019, from the appellant of a 2010 Mercedes Benz B200 motor vehicle, for $13,300.00. 2. The appellant's appeal was listed for hearing on 2 April 2020. Prior to the hearing, in response to COVID-19 social distance requirements, the Registrar wrote to the appellant and the respondent to advise that the hearing of the appellant's appeal would proceed by telephone. 3. At the hearing, on 2 April 2020, there was no appearance by the appellant. However, Mr Frank Kalyk (Mr Kalyk) , a director of the respondent, appeared, by telephone, on behalf of the respondent. After several attempts to make telephone contact with Mr Anthony Hogan (Mr Hogan), who had previously been granted leave, by the Appeal Panel, to appear on behalf of the appellant, we proceeded to hear from Mr Kalyk and reserved our decision. 4. The issue for determination is whether, in the absence of any appearance by the appellant, the appeal should be determined on its merits or dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For the reasons that follow, we have decided to dismiss the appellant's appeal, under s 55(1)(c) of the NCAT Act, which relevantly provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, … (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. Background 1. On 23 September 2019, the respondent lodged an application (consisting of 3 pages) with the Tribunal, in the Consumer and Commercial Division, seeking an order that the appellant pay it the following amounts: 1. $4,518.00 in regard to the Mercedes SatNat that the appellant had promised to provide as part of the sale of the Vehicle; 2. $440.00 in regard to the costs of a warranty inspection undertaken at the request of the respondent on 28 August 2019; 3. $1,504.35 being the costs of repairing the engine and transmission mounts that were found to be defective during the warranty inspection; and 4. $119.00 being the late fee payable by the respondent in lodging the transfer of registration form for the Vehicle, which the appellant had failed to forward to the respondent within the time required. 1. The total of these amounts was $6,581.35. 2. We note that in its application to the Tribunal, the respondent said: … [the] Applicant agreed to purchase and the Respondent agreed to sell the Car for the price of $13,300 ('the Agreement"). It was a term of the Agreement, by reason of which the agreed price was increased from $13,000, that the Respondent would, after the purchase of the Car, install in the dashboard screen of the Car a Mercedes Satnav system ('the Satnav"). The Respondent agreed that as the Satnav was not in stock, it would be ordered and when received into stock (expected to be within a few weeks), the Applicant could return the Car for installation of the Satnav. … 1. On 24 September 2019, the Tribunal sent a Notice of Conciliation and Hearing to the appellant and the respondent. Attached to the Notice sent to the appellant was a copy of the respondent's application. The Notice advised the appellant and the respondent that the matter (i.e. the application) 'has been listed before the Tribunal and you are required to appear.' The Notice went on to advise that: 1. the matter was listed before the Tribunal on 9 October 2019, at 2.15 pm; and 2. 'It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you'. 1. The appellant and the respondent appeared before the Tribunal on 9 October 2019. On this day, the Tribunal made an order adjourning the hearing to a date to be fixed by the Registrar. The Tribunal also made the following orders: 1. The Tribunal directs that the original application and these orders, together with all future correspondence be sent to the respondent: a. By email to 1950receipts@gmail.com; and b. By post to PO BOX 465 Bexley NSW 2207 Australia (…) 2. … 3. The applicant shall provide to the respondent and the Tribunal, either in person or by post TO THE POSTAL ADDRESS ABOVE, a copy of all documents (…), on which the applicant intends to rely at the hearing by 24 Oct-2019. This is to include all documentary evidence … 4. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (…) on which the respondent intends to rely at the hearing by 07 Nov -2020. 5. The documents provided by each party must be placed in a folder, … 6. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so. 7. … 1. On 23 October 2019, the Tribunal sent a Notice of Hearing to the appellant and the respondent to advise that that the respondent's application was listed for hearing on Friday 20 December 2019 at 11.15 am. The Notice also reiterated the following: 'It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you'. 2. At the hearing on 20 December 2019, there was no appearance for the appellant. However, Mr Kalyk, appeared on the respondent's behalf. 3. In the absence of any appearance by the appellant, the Tribunal proceeded to hear the respondent's application and made the orders set out in paragraph [5] above. However, the Tribunal did not publish its reasons for decision. Proceedings before the Appeal Panel Notice of Appeal 1. As we have noted, the appellant lodged its Notice of Appeal on 28 January 2020. We note that Mr Hogan signed the Notice of Appeal on behalf of the appellant. 2. In its Notice of Appeal, the appellant said it received a copy of the decision of the Tribunal on 6 January 2020. 3. The appellant's grounds of appeal were stated to be as follows: Our representative was ill from work for 3 days and therefore was unable to attend the hearing that day. Appealing Engine Mounts claim as we were not given 1st right of refusal to make good/repair. Appealing SATNAV claim as it was stated on the contract under special conditions 'Bluetooth Device to be installed at no cost to client after delivry (sic) of car'. Client proceeded to install a genuine Mercedes device for $4518.00. We only sold the car for $13,000.00 and we at no point ever agreed to such a thing. We quoted the client that the one we would get costs approx. $500.00 so to go and pay 9 times that amount is ludicrous. We should not be liable for the client paying for a Warranty Inspection. 1. Attached to the appellant's Notice of Appeal was a copy of the orders of the Tribunal, made on 20 December 2019. 2. In its Notice of Appeal the appellant also sought leave to appeal on the grounds that the decision of the Tribunal was: 1. not fair and equitable because it was unable to defend itself and the decision to pay for the SATNAV was not fair and equitable considering the cost of the car; and 2. more weight should have been given to the actual cost of a Bluetooth device compatible with the vehicle. Reply to Appeal 1. The respondent filed and served a Reply to Appeal, on 11 February 2020. In its Reply, the respondent said it supported the order that was made by the Tribunal. The respondent also contended that the appellant's appeal was lodged out of time and it objected to time being extended. 2. Attached to the respondent's Reply to Appeal was: 1. a document titled 'Particulars of Appellant's Failure to Comply with Tribunal's Directions and to Take Part in its Processes'; 2. a copy of the Notices sent, by the Registry, to the respondent on 23 September 2019 and 23 October 2019; 3. a copy of the orders made by the Tribunal on 9 October 2019 and 20 December 2019; and 4. a copy of a screen shot of the respondent's Dropbox account, which the respondent contended to be evidence of the appellant having: 1. received its email, sent in accordance with the 9 October 2019 orders of the Tribunal, with a link to its Dropbox account containing the material on which the respondent would rely in support of its claim before the Tribunal; and 2. viewed this material on three occasions being 22, 23 and 24 October 2019. 13 February 2020 Call Over 1. In accordance with the usual practices of the Tribunal, the appellant's appeal first came before the Appeal Panel, at a call over, on 13 February 2020. With the leave of the Appeal Panel, constituted by Principal Member Britton, Mr Hogan appeared, on behalf of the appellant, and Ms J McKenzie appeared on behalf of the respondent. 2. On this day the Appeal Panel made the following orders: 3. The Appellant is to lodge with the Tribunal and provide to the Respondent by 27 February 2020: (a) Any fresh evidence on which it is intended to seek leave to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts. 4. The respondent is to lodge with the Tribunal and provide to the Appellant by 12 March 2020: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) Any fresh evidence on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts. 5. The Appellant is to lodge with the Tribunal and provide to the Respondent any written submissions in reply by 19 March 2020. 6. The Appeal is listed for HEARING on 2 April 2020 at 10:15am for half a day. 7. The issue of whether the Appeal Panel should: (a) extend the time for filing the Notice of Appeal (b) give leave to appeal on grounds other than a question of law (c) give leave to rely on fresh evidence is to be determined at the hearing of the appeal. 1. The written Notice of the abovementioned Orders, sent that day to the appellant and the respondent, included the following notation: (2) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make. Subsequent communications, to the parties, by the Registry 1. On 23 March 2020, the Registrar wrote to each party to advise that, in response to COVID 19, the proceedings, listed for hearing on 2 April 2020, would proceed by telephone. The Registrar went on to say: Do not attend the appeal hearing in person. The hearing will proceed by telephone. You must advise the registry of the telephone number you will be available on, by email, to ap@ncat.nsw.gov.au prior to the hearing date. 1. The Registrar's letter was sent, by email, to each party at the email addresses identified on the appellant's Notice of Appeal. In the appellant's case, it was sent to 1950receipts@gmail.com. 2. The respondent responded to the Registrar's letter and advised that Mr Kalyk would be appearing on behalf of the respondent. Mr Kalyk's telephone contact number was also provided. 3. No response was received from the appellant. The hearing 1. At the commencement of the hearing we telephoned Mr Hogan, on the mobile phone number the Registry had identified for Mr Hogan. Mr Hogan did not respond and his mobile phone went into message bank. We then telephoned Mr Kalyk, on the mobile phone number the Registry had identified for him. Mr Kalyk answered the call and we again telephoned Mr Hogan. Mr Hogan's mobile phone again went into message bank. In the absence of any response from Mr Hogan we advised Mr Kalyk that we would stand the matter down for half an hour. The same message was left on Mr Hogan's mobile phone message bank. 2. About half an hour later, we again telephoned Mr Hogan on the mobile phone number the Registry had provided for him. We also telephoned Mr Hogan on the mobile phone number Mr Hogan had provided on the Notice of Appeal. Again, there was no answer from either number. 3. We then called Mr Kalyk, who answered. We explained that, again, there had been no response from Mr Hogan. Mr Kalyk said he was nevertheless ready to proceed with the appeal. Jurisdiction of the Appeal Panel 1. The decision of the Tribunal is an internally appealable decision: NCAT Act, ss 32(4) and 80(1). 2. Section 80(2)(b) of the NCAT Act provides that an internal appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 3. As the appellant's appeal is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides that the Appeal Panel may only grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The Appeal Panel considered the meaning of the phrase 'a substantial miscarriage of justice', in Collins v Urban [2014] NSWCATAP 17, at [71], [76] and [79]. In summary, at [79], the Appeal Panel said: [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 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. The powers of the Appeal Panel in determining an appeal, or an application for leave to appeal, are set out in s 81 of the NCAT Act, which provides as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. Consideration Appellant's case 1. Other than what is stated in its Notice of Appeal, the appellant has not filed or served any material as directed by the Appeal Panel, on 13 February 2020. 2. As we have noted in paragraph [15] above, the appellant's grounds of appeal were: 1. its representative was unable to attend the hearing before the Tribunal at first instance because he/she was ill; 2. its agreement with the respondent in regard to the sale of the motor vehicle did not include a SatNav – it included a Bluetooth device; and 3. it was not given '1st right of refusal to make good/repair' in regard to the engine mounts on the motor vehicle. Respondent's case 1. At the hearing of the appeal, Mr Kalyk contended: 1. the appellant had failed to provide and specific details or evidence in support of its assertion that its representative was ill and therefore unable to attend the hearing before the Tribunal at first instance; 2. there had been no denial of procedural fairness in that the appellant had been served with the material on which the respondent relied in support of its claim before the Tribunal below; 3. despite the orders made by the Tribunal at first instance, on 20 October 2019, the appellant failed to file and serve any material in defence to the respondent's claim; 4. the appellant has 'thumbed up its nose at the Tribunal every step of the way. The appeal is a stalling tactic on its part and for which it needs leave as it was lodged out of time'; and 5. while the appellant seeks to 're-test questions of fact' it has put no evidence forward – it is a 'simple contractual matter' and leave to appeal should not be granted as the appellant has not demonstrated that it may have suffered a substantial miscarriage of justice. Extension of time 1. In our view, in the absence of any contrary evidence, we accept that the appellant did not receive notice of the decision of the Tribunal at first instance, until 6 January 2020. Hence, we find that the appellant's Notice of Appeal was lodged within the prescribed 28 days from which it was notified of the decision of the Tribunal at first instance: see Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), rule 25(4)(c). Should the appeal and notice for leave to appeal be dealt with on its merits? 1. Section 36 of the NCAT Act sets out the guiding principle that is to be applied to the practice and procedure of the Tribunal, including the Appeal Panel. That section relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. 1. We also note that s 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 2. The rules of natural justice are often referred to as the rules of procedural fairness; they provide for a fair trial where a party can put his or her case fairly before the court: Stead v State Government Insurance Commission of Australia [1986] HCA 54; (1986) 161 CLR 141, at [9]. 3. Rule 35 of the NCAT Rules gives the Tribunal, in the Consumer and Commercial Division, the power to proceed to hear matters before it in the absence of a party. That rule provides as follows: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if— (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party. (3) If proceedings to which this rule applies are adjourned by the Tribunal in the absence of a party, a registrar is to give notice (or direct that notice be given) of the time and place of the adjourned hearing to the absent party. 1. Neither the NCAT Act, nor the NCAT Rules, contain a similar provision in regard to proceedings before the Appeal Panel. It may be that s 81(2) of the NCAT Act is sufficiently broad to confer a similar power on appeal from a decision of the Tribunal, in the Consumer and Commercial Division, at first instance, or that the Appeal Panel is otherwise entitled to proceed in the absence of a party if the party has been given a reasonable opportunity to be heard. In the absence of having heard from the parties about this we make no finding in this regard. 2. Even if such a power were conferred, in our view, in this case, the preferable course is to dismiss the proceedings for failure to appear. The position at common law is that if the defendant appears at the trial and the plaintiff is absent, the defendant is entitled to judgment dismissing the plaintiff's claim. The effect of the judgment is the same as if it were a judgment dismissing the action on the merits: Amour v Bate [1891] 2 QB 223, cited in Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 at [20]. Section 55 of the NCAT Act confers a power on the Tribunal to dismiss an appeal in similar circumstances. Should the appellant's appeal and application for leave to appeal be dismissed? 1. Section 55 of the NCAT Act relevantly provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. 1. Rule 36 of the NCAT Rules provides that, unless the Tribunal grants an extension of time under s 41 of the NCAT Act, an application to reinstate proceedings that have been dismissed under s 55(1)(c) of the NCAT Act must be made within 7 days after the Tribunal has dismissed the proceedings. Decision 1. In this case, the appellant did not seek a stay of the decision of the Tribunal at first instance. Hence, the decision of the Tribunal at first instance remains enforceable: NCAT Act, s 43(2) and (3) and New South Wales Land and Housing Corporation v Hamilton [2015] NSWCATAP 96. 2. Nor have the appellant's appeal proceedings been protracted. There has only been one call-over, on 13 February 2020. 3. Mr Hogan appeared, on behalf of the appellant, at this call-over. Hence, he was aware of the orders made and the date of the hearing. Yet the appellant has failed to provide any explanation as to why it has failed to file and serve its evidence, as ordered, by 27 February 2020. Nor did the appellant respond to the email of the Registry, in which it advised that the hearing would be by telephone. 4. In our view, in light of the appellant's duty to co-operate with the Tribunal to give effect to the guiding principle in s 36(1) of the NCAT Act, the appellant's failures warrant the dismissal of its appeal and application for leave to appeal for want of prosecution (NCAT Act, s 55(1)(d)), or on the grounds of a failure to appear (NCAT Act, s 55(1)(c)). The former would finally dispose of the appellant's appeal and application for leave to appeal. The latter would also finally dispose of the appellant's appeal and application for leave to appeal, subject to the appellant making an application for re-instatement and persuading the Appeal Panel to make an order for re-instatement. 5. In our opinion, as the proceedings have not been unduly protracted, no stay order has been sought or made and given the recent rapidly changing COVID 19 social distancing requirements, the appellant should be given the opportunity to make an application for reinstatement in the event there is a reasonable explanation for its failures, in particular its failure to enter an appearance at the 2 April 2020 hearing. This will give the appellant 7 days within which to make an application for re-instatement. 6. Accordingly, we make the following order: 1. The appeal and application for leave to appeal are dismissed for failure to appear, pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** 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 April 2020