Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anthony Owen Brett t/as Love Revolution Music and Film Productions v Australian Trade Exhibitions Pty Ltd [2020] NSWCATAP 90 Hearing dates: 6 April 2020 Date of orders: 20 May 2020 Decision date: 20 May 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President K Rosser, Principal Member Decision: (1) A further hearing of the appeal is dispensed with. (2) Appeal dismissed. Catchwords: CONSUMER CLAIM – due care and skill Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Fair Trading Act (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Anthony Owen Brett t/as Love Revolution Music and Film Productions (Appellant) Australian Trade Exhibitions Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) J Wentworth (Respondent) File Number(s): AP 19/54397 Publication restriction: Nil Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 17 October 2019 Before: C Marzilli, General Member File Number(s): GEN 19/27451 REASONS FOR DECISION Background 1. This is an appeal from a decision made in the Consumer & Commercial Division of the Tribunal on 17 October 2019. We will refer to that decision as the Decision. The Appellant was the Applicant and the Respondent to the appeal was the Respondent in the Consumer & Commercial Division proceedings. 2. The Appellant had brought proceedings for compensation arising out of contracts by which the Appellant had engaged the Respondent to provide certain services at a fashion show organised by the Respondent. The Appellant's application was unsuccessful and the Tribunal made an order dismissing the application. The Summary of the Decision 1. We summarise the Decision for the purposes of enabling a better understanding of this decision as follows: 1. The Tribunal found that the parties had entered into two contracts, one called the exhibition contract and the other called the runway contract. Briefly speaking the exhibition contract involved the Respondent hosting an exhibition of the Appellant's products at an event called the Sydney Retail Fashion Show. The runway contract provided for the Respondent to show the Appellant's products through the use of models and photography. 2. The Appellant was highly critical of aspects of the showing of his products and sought to invoke the jurisdiction of the Tribunal to determine consumer claims. That jurisdiction is contained in the Fair Trading Act 1987, including the Australian Consumer Law. The Tribunal was required to consider whether the Respondent provided services with due care and skill as required by the Australian Consumer Law. 3. In the Decision there is consideration of the terms of the two contracts including provisions by which certain aspects of the performance of the Respondent's obligations were to be managed by the Respondent, or the Respondent's subcontractors. The Tribunal found that under the contracts the Appellant was not entitled to give direction or instruction to the Respondent. The parties had agreed that the control of certain matters (such as music, audiovisuals, stage effects, styling and timing) were at the discretion of the Respondent or its subcontractors. 4. The Tribunal found that on the evidence before it, there was insufficient material to base a finding that the Respondent had provided services in breach of its obligations under the Australian Consumer Law. Notice of Appeal 1. A Notice of Appeal was filed on 4 December 2019. However, the notice from the Tribunal recording the Decision is dated 5 November 2019. The appeal therefore appears to have been filed within the time required by Rule 25 of the Civil & Administrative Tribunal Rules, 2014, (the Rules) – that is within 28 days of the receipt of the Decision. 2. There were no grounds of appeal identified in the Notice of Appeal. However, the Notice of Appeal contained submissions that the Decision was not fair and equitable. In that section the Appellant stated that he had asked for photos concerning his products to be removed from the Respondent's website. There was also a submission that the recording of the hearing on 30 August 2019 was not available and that it had information (which was not specified) on it. Reply to Appeal 1. The Respondent has filed a Reply submitting that the appeal had not been lodged within time and objecting to leave being granted. The Reply also stated that "no legitimate reasons" had been put forward for an appeal. The Appeal Proceedings 1. Directions were made on 9 January 2020 for the parties to file and serve submissions in support of their respective positions in the appeal. The appeal was listed for hearing on 12 March 2020. The hearing did not proceed on that occasion because of the illness of the Appellant who provided a medical certificate indicating he was unwell. The appeal was then listed for hearing by telephone on 6 April 2020. At 1:24 pm on 6 April 2020 the Appellant sent an email to the Tribunal stating that he was unwell again and seeing a doctor. He asked for the hearing to be moved to another date "after the coronavirus is over". We rang the parties on 6 April 2020 at the hearing which commenced 2:15 pm. We were able to speak to a representative of the Respondent but the Appellant's telephone did not respond. 2. Because of the position of the Appellant we made the following orders on 6 April 2020 (not 7 April as the Tribunal's Notice states): 1. The hearing of the appeal is adjourned. 2. The Appellant is to file and serve submissions in support of the appeal within seven days. 3. The Respondent is to file and serve any submissions in reply within seven days thereafter. 4. The Tribunal will determine the hearing on the papers and there will be no further hearing unless the Appellant submits that there should be a hearing, and we agree. 1. Thereafter the Appellant has emailed the Tribunal on a number of occasions and those emails have been provided to us. One email dated 7 April 2020 attached a medical certificate confirming the Appellant's illness the day before. Other emails dated 21 April 2020 state that the Appellant needs a "face-to-face" hearing for the appeal. Appellant's Submissions 1. On 5 February 2020, the Appellant lodged with the Tribunal his submissions and other material in support of the appeal. The Appellant submitted that the Decision was wrong and identified the paragraphs said to contain errors. However, the precise errors were not identified. 2. It is important to note that the Appellant did not state that the Decision was in error in stating at [15] that the parties entered into the two contracts earlier referred to. The balance of the material provided by the Appellant describes the reasons for the Appellant's dissatisfaction with the services provided by the Respondent or on its behalf. These complaints largely concerned the fact that the models and the subcontractors engaged by the Respondent who organised aspects of the fashion show did not ensure that the precise instructions of the Appellant were followed. For example, the Appellant said that a model did not hold a surfboard in the correct way with the result that words on the model's clothing were blocked. A second example concerned a model who did not take a jacket off and did not wear the correct coloured jeans. 3. The Respondent filed submissions, but in our view, there is no need to set them out in this decision. 4. Having considered the Appellant's materials filed in support of the appeal including his submissions, we are satisfied that the issues for determination in this appeal can be adequately determined in the absence of the parties by considering the material provided. That is because the Appellant's Notice of Appeal, submissions and the emails referred to adequately describe the Appellant's grounds of appeal and there is no fresh evidence to consider. Accordingly, we propose to make an order dispensing with a further hearing of the appeal. Our Decision 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act, 2013 (NSW) (NCAT Act) and the Rules. Essentially, an appeal is of right on any question of law or with leave on the grounds set out in cl 12 of Schedule 4 of the NCAT Act. 2. The Appellant has not raised any question of law and, in our view, there is no question of law arising from the Decision. Accordingly, it is necessary to consider cl 12 Schedule 4, the provisions of which are as follows: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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). Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. This appeal is based upon the ground that the Decision was not fair and equitable. It is not clear to us why the Decision could be so described. The Appellant disagrees with the Decision, but that does not make it a decision which is not fair and equitable. 2. Clause 12 requires the Tribunal to be satisfied that the Appellant may have suffered a substantial miscarriage of justice and we see no basis for concluding that the Decision was not fair and equitable. It follows that, in our view, we are not satisfied that the Appellant has suffered a substantial miscarriage of justice. 3. The reason that we have come to the views expressed in the above paragraphs is that the Member found that the contracts entered into between the parties gave to the Respondent a discretion as to how the services were to be performed. The contracts were in writing and copies were before the Tribunal. The specific clauses of the contracts giving the Respondent discretion were set out in the Decision. 4. The Appellant has complaints about the manner of performance but, in our view, the Tribunal was correct in finding that conduct of the matters envisaged by the contract was at the discretion of the Respondent or its subcontractors. The Decision also found that the evidence did not support a finding that the Respondent's performance of its obligations was not provided with due care and skill. In our view, the Decision was correct in its analysis of the terms of the contracts and, in our view, the Decision was not in error in its conclusion that the Appellant's evidence did not support the making of findings that the Respondent had failed to perform with due care and skill. 5. Accordingly, the appeal must be dismissed. 6. The Respondent alleges that the appeal was filed out of time. We do not agree for the reasons earlier set out. 7. Finally, we note that the Appellant in his submissions makes the point that the subcontractors who conducted the Respondent's obligations were not put forward by the Respondent as witnesses in support of the Respondent's position. For example, the Appellant said that one of the subcontractors, a Mr Azzopardi, did not perform his obligations with due care and skill and that there was no evidence that he was a professional stylist. The Appellant, as the party making the allegations against the Respondent, had the obligation of producing evidence to satisfy the Tribunal that the Respondent had not performed its obligations with due care and skill. The fact that the Respondent chose not to put forward witnesses such as Mr Azzopardi does not mean that the Appellant's case should be successful. The Appellant had the onus of putting forward evidence proving his case. 8. For the above reasons, the orders that we make are as follows: 1. A further hearing of the appeal is dispensed with. 2. Appeal 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. 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: 20 May 2020