Jackson v Smart Ehealth Pty Ltd

[2021] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jackson v Smart Ehealth Pty Ltd [2021] NSWCATCD 5

Hearing dates:

19 May 2021

Date of orders:

25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC, Senior Member

Decision:

1.   The respondent is to pay the applicant $5,640 immediately.

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct

CONTRACT – Variation of contract

Legislation Cited:

Australian Consumer Law

Competition and Consumer Act 2010

Fair Trading Act 1987

Cases Cited:

Haines v Bendall [1991] HCA 15

Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

Category:

Principal judgment

Parties:

Applicant: Tanya Elisabeth Love Jackson
Respondent: Smart Ehealth Pty Ltd

Representation:

Applicant: In person
Respondent: No appearance

File Number(s):

GEN 21/02075

Publication restriction:

Nil

REASONS FOR DECISION

History of the proceedings

1. On 15 January 2021 an application was lodged in which sought an order that the respondent pay the applicant $5,640. The application relates to a Certificate III course and a Certificate IV course in fitness training for which the applicant paid that amount to the respondent with the aim of achieving those qualifications.

2. On 16 February 2021, at a preliminary hearing, the applicant was given until 22 February 2021 to provide a copy of her documents to the Tribunal and the respondent and a direction was made for the provision of documents by the respondent to the Tribunal and the applicant on or before 09 March 2021.

3. On 17 March 2021 a notice of hearing was issued to advise the parties that the application was listed for hearing today.

Hearing

4. The hearing, which was conducted by telephone due to the COVID-19 pandemic, was attended by the applicant but there was no appearance for the respondent. It was confirmed by the applicant that she had provided a copy of her documents to the respondent.

5. On the day prior to the hearing, the applicant sent the Tribunal a bundle of 63 pages, more than two months after the 04 March 2021 deadline for the respondent to submit the documents upon which it relied at the hearing.

6. At 8.29am on the morning of the hearing, which was listed to commence at 1.15pm, the respondent’s Mr Gourley sent an email, to the Tribunal but not to the applicant, in which he requested that the following information be provided to the Tribunal member assigned to the hearing:

“1. I am the respondent in the above matters scheduled before the court today.

2. I am unwell and will not be in attendance at the hearing.

3. I apologise for not being able to make the hearings.

4. I am the only employee in the company now so cannot have anyone else attend on the company’s behalf.

5. I have submitted materials electronically for both matters and seek leave from the Tribunal Member assigned to the hearing to have them considered.

6. I attach the same again for convenience.

7. I understand the hearings will proceed and understand orders will be made in my absence.

8. I do not seek representation.

9. I do not dispute the facts presented by the [Applicant].

10. I declare that all materials I have submitted to be true and factual.”

Evidence

7. The documents upon which the applicant wished to rely, being her application and the documents received by the Tribunal from her on 01 February 2021 and 01 March 2021, were identified and admitted as Exhibits A, B and C respectively.

8. The applicant understandably did not accept that the respondent should be permitted to rely on 63 pages of documents that (1) were filed more than two months late, (2) were filed on the day before the hearing, and (3) which she had been unable to view until the morning of the day of the hearing. Those documents were not admitted as evidence but were marked for identification as MFI 1.

9. As the respondent’s email dated 19 May 2021 was sent to the Tribunal but not to the applicant, it was read to her. She accepted that such an email should be part of the evidence.

10. During the hearing the applicant referred to the Student Enrolment Agreement (SEA) which was one of the documents in MFI 1. For that reason, and since it was a document that she had completed and signed, it was admitted as Exhibit 2.

11. For the sake of completeness, the position in documents which comprise MFI 1, became as follows:

1. The pages containing the respondent’s submission (pages 1-2) were rejected as it would be procedurally unfair to permit the respondent to rely on a document which they applicant has not had adequate time to consider.

2. The SEA (pages 3-10) was admitted as Exhibit 2.

3. The Student Handbook (pages 4-29) was rejected for the same reason as the submission and as the applicant could not recall receiving with that handbook.

4. The pages said to contain “Communications with the Applicant” (pages 30-47) and the pages said to contain the applicant’s “Academic Progress” (Pages 48-63) were rejected as it would be procedurally unfair to admit them as evidence and since some of those pages appeared to relate to another applicant (Mr Toole).

12. Thus, the respondent’s documents that were admitted as evidence were confined to the respondent’s 19 May 2021 email to the Tribunal (Exhibit 1) and the Applicant’s SEA (Exhibit 2).

13. As there was no cross-examination and no appearance by or for the respondent, it remained to hear oral submissions from the applicant.

Jurisdiction

14. By reference to the provisions of the Fair Trading Act 1987 (the FTA), it is clear that the applicant is a consumer (within section 79D) bringing a consumer claim (within section 79E), for a supply of services, including goods (within section 79F), that the supply was made in New South Wales (within section 79K) and that the applicant is not claiming more than the prescribed limit of $40,000 (section 79S).

15. Section 79L of the FTA limits the time within which a claim can be made and section 79L(1)(a) requires that the cause of action first accrued not more than three years before the commencement of these proceedings. As the transaction the subject of these proceedings commenced in May 2019 and the conduct of which she complains occurred in October 2020, these proceedings have been commenced within that time limit since the application was lodged in January 2021. Section 79I of the FTA entitles the applicant to have this claim determined by the Tribunal. Accordingly, the Tribunal has jurisdiction in these proceedings under the FTA.

Applicant’s evidence

16. In her application (Exhibit A) the applicant said that on 21 May 2019 she signed a contract in order to complete a Certificate 3 and Certificate 4 course that was to be provided by the respondent, through a combination of on-line study and face-to-face learning, for which she paid the respondent a total of $5,640 (28 instalments of $195). She said that in the first four months she was assigned four different tutors and only met two of them and that her fourth tutor was unreliable, cancelling or rescheduling her sessions on 12 occasions.

17. In March-April of 2020, when gyms closed due to the Covid-19 pandemic, her tutor advised her that her 12-month study period would be extended with no set end date and that all practical assessments would be postponed. Although she continued with the course, on 09 August 2020 her access to the on-line study facility was removed. After contacting the respondent on 01 September 2020 and sending a complaint by email the next day, it was not until more than eight weeks later, on 28 October 2020, that she received a reply which said that her contract has finished as her enrolment period had elapsed.

18. A chronology of the relevant events, revealed by the applicant’s evidence, is set out below:

21 May 19   Applicant enrolled, assigned Peter Ball as tutor, met him twice

18 Jul 19   Reassigned to Sarah Newman but never met her as she left

Aug 19   Reassigned to Corey Gooch but never met him

Sep 19   Advised he was removed, had a session with Belinda Harrington

09 Oct 19   Reassigned to Tammy Green, first session on about 17 Oct 19

24 Oct 19   Ms Green cancelled session due to “tummy bug”

14 Nov 19   The applicant had a session with Ms Green

20 Nov 19   Ms Green cancelled next day session – not convenient for her

05 Dec 19   The applicant had a session with Ms Green

11 Dec 19   Ms Green cancelled next day session – not convenient for her

18 Dec 19   Ms Green cancelled next day session – her partner’s surgery

09 Jan 20   The applicant had a session with Ms Green

22 Jan 20   Ms Green cancelled next day session – not convenient for her

30 Jan 20   Ms Green cancelled a session – reason given: food poisoning

Mar 20   Gym sessions cancelled due to Covid-19

24 Mar 20   Ms Green advised practical sessions had been postponed

02 Apr 20   Ms Green cancelled a session – said she had Corona virus

11 Apr 20   Ms Green cancelled a session – reason given: busy weekend

16 Apr 20   The applicant had a session with Ms Green during which advised there would be no time limit due to gym closures, Covid restrictions and the applicant not having a consistent tutor for four months.

From May   Multiple text messages about tutor sending a video tutorial

18 Jun 20   The applicant received that video tutorial and was advised that she was up to date with her online work.

14 Jul 20   Certificate IV course materials were released to the applicant

28 Jul 20   The applicant had a session with Ms Green on or about this day

09 Aug 20   Applicant contacted tutor due to removal of her online access

11 Aug 20   Ms Green cancelled a session – reason given: staff sickness

12 Aug 20   Ms Green cancelled a session – same reason given

18 Aug 20   Intended one on one session changed to a zoom call

27 Aug 20   Ms Green cancelled a session: she did not have online access

01 Sep 20   Applicant inquired by email about lack of online access

02 Sep 20   Applicant submitted a complaint about lack of online access

04 Sep 20   The applicant had a session with Ms Green

10 Sep 20   Ms Green cancelled a session – reason given: she was sick

25 Oct 20   Applicant sent follow-up email to the respondent

28 Oct 20   Respondent’s CEO replied that her 12 months had expired

19. The Tribunal notes that, in an email dated 18 June 2020, a copy of which is the penultimate page of Exhibit C, the respondent’s Ms Green included the words: “I have had a look at your online work and you are all up to date with where I need you to be right now :) So, please see the attached link for hour next coaching session.”

Respondent evidence

20. Exhibit 1 is a copy of the Student Enrolment Agreement (SEA). Although clause 4.1 suggested there would be no refunds or waivers, that was qualified by cluse 4.2 which recognised the applicant’s rights under the ACL. Clause 7 indicated that, when the respondent is unable to continue a course, it would either offer an alternative option or provide a pro rata refund.

21. Exhibit 2, being the email sent by the respondent’s CEO on the morning of the day of the hearing and which was sent to the Tribunal but not to the applicant, contained the words: “I do not dispute the facts presented by the [Applicant]”.

The relevant law

22. By reason of section 28 of the FTA, the provisions of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth), become part of the law of New South Wales and apply to proceedings where the Tribunal has jurisdiction under the FTA.

23. In the ACL, subsection 18 contains a requirement that “A person must not, in trade or commerce, engage on conduct that is misleading or deceptive, or is likely to mislead or deceive”. Section 236 of the ACL entitles an applicant to recover damages from the respondent if a breach of that section is established.

24. Of course, the general law of contract also applies to the applicant’s bookings with the respondent.

Findings of fact

25. Having regard to the submissions made, based on the evidence, the Tribunal makes the following findings of fact, noting that the respondent’s CEO has indicated: “I do not dispute the facts presented by the applicants”.

1. On 21 May 2019 the applicant applied to enrol in two courses with the respondent, a Certificate III course and a Certificate IV course.

2. Her enrolment application was accepted on behalf of the respondent by her assigned tutor.

3. In the resulting contract, the applicant was made aware that her enrolment period was 52 weeks, from 21 May 2019 to 20 May 2020.

4. The applicant paid the respondent a total of $5,640, in 28 instalments of $195, in respect of that contract.

5. Between 21 May 2019 and 09 October 2019, the applicant was successively assigned four tutors.

6. Between 24 October 2019 and 10 September 2020, the applicant had her practical sessions cancelled by her tutor on 12 occasions.

7. From March 2020, practical sessions were not held due to gym closures and Covid-19 movement restrictions.

8. On 16 April 2020 the applicant’s tutor represented to her that there would be no time limit due to gym closures, Covid restrictions and the applicant not having a consistent tutor.

9. Consistent with that advice, the applicant was provided with access to the course materials on the respondent’s portal and further practical sessions were conducted.

10. On 18 June 2020 the applicant was advised that she was up to date with her online work and a link was provided for her next coaching session.

11. On 14 July 2020 materials for the Certificate IV course were released to the applicant.

12. On about 28 July 2020 the applicant had a practical session with Ms Green.

13. On 18 August 2020 a practical session was conducted via a zoom call.

14. The applicant was subsequently denied access to the respondent’s learning portal.

15. On 02 September 2020 the applicant complained to the respondent that she had been denied access to the respondent’s learning portal.

16. On 28 October 2020 the respondent relied that her 52-week enrolment period had ended on 20 May 2020.

Consideration

26. The unchallenged evidence of the applicant is that there was a representation made by Ms Green to her that the time limit of her enrolment period, which was due to expire on 20 May 2020, would not apply (the initial representation).

27. Consistent with that representation:

1. On 18 June 2020 the applicant received a video tutorial from the respondent.

2. On 18 June 2020 the applicant was advised that she was up to date with her online work and a link was provided for her next coaching session.

3. On 14 July 2020 Certificate IV course materials were released to the applicant.

4. On about 28 July 2020 the applicant had a practical session with Ms Green.

5. On 18 August 2020 the applicant had a practical session changed to a zoom call.

28. By that conduct of the respondent, further representations were made that the applicant had been granted an extension of time to complete the courses. Those five matters will be collectively referred to as the subsequent representations.

29. It is clear that both the initial representation and the subsequent representations were made in trade or commerce. Even if it could be suggested that Ms Green did not have actual authority to make the initial representation, she had ostensible authority, ie authority the law infers or assumes an agent to have been given by a principal, viewed objectively, based on the representations and conduct of the agent: Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549. The basis for that inference is that the assigned tutor had authority to accept enrolments, evidenced by him signing on behalf of the respondent underneath the words “Signed for iPT Australia by its authorised signatory”.

30. Contrary to each of those representations, the applicant had not been granted an extension of time as is established by the respondent asserting in its letter dated 28 October 2020 that the applicant’s period of enrolment had expired on 20 May 2020.

31. As a result, each of those representations was misleading and the Tribunal is satisfied that the applicant has established that the respondent has breached section 18 of the ACL.

32. The fact that the applicant continued to do coursework after the representations were made establishes that she relied on and acted upon those representations. Due to the respondent claiming that her enrolment has expired on 20 May 2020 and denying her access to the course materials, she was unable to complete either of the courses for which she enrolled.

33. There is no evidence from either party that the applicant will be able to use the elements she completed with the respondent if she now undertakes the same courses with another service provider. In those circumstances, she has suffered a loss in that she has paid $5,640 for the provision of services which she was unable to pursue to completion due to the conduct of the respondent that was in breach of section 18 of the ACL.

34. Accordingly, pursuant to section 236 of the ACL, the applicant is entitled to an award damages of $5,640 in her proceedings against the respondent.

35. There is a further basis upon which the applicant is entitled to damages of that amount. The extension of time granted by the respondent’s agent, Ms Green, constituted a variation of the applicant’s contract with the respondent. There was no provision in that contract which required any variation in writing. It is a reasonable inference that the assigned tutor was authorised to vary that contract, since the assigned tutor was authorised to make a contract on behalf of the respondent.

36. Both parties acted on the basis of that varied contract as evidenced by the applicant continuing with the course and the respondent’s conduct summarised in the five matters set out in paragraph 27 above.

37. As a result, when the respondent denied the applicant access to its learning facilities, that was a breach of the contract, as varied, and the applicant has suffered loss as a result of that breach.

38. The respondent also appears to have breached clause 7 of the SEA by failing to provide an alternative option or providing a pro rata refund when it was unable to continue to provide the course due to the Covid-19 restrictions.

39. The measure of the applicant’s loss is the amount that is required to put her in the position she would be in but for that breach: Haines v Bendall [1991] HCA 15. Had there been no breach, the applicant would have been able to complete the courses at a cost of $5,640. In order to complete those courses, the applicant will need to commence them again as there is no evidence that she will be able to claim any credit for the work done during the courses provided by the respondent.

40. In the absence of evidence of the cost of completing the same courses with a different service provider, the Tribunal uses the same amount as the respondent charged the applicant for those courses in the assessment of the amount of damages to which she is entitled. Thus, on this alternative basis, the applicant is likewise entitled to an award of damages of $5,640.

41. For the reasons indicated above, the order that will be made is as follows:

1. The respondent is to pay the applicant $5,640 immediately.

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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

Decision last updated: 28 July 2021