Khanna v Bunnings Group Limited

[2025] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation:

Khanna v Bunnings Group Limited [2025] NSWSC 199

Hearing dates:

3 December 2024; further written submissions 12, 18 December 2024

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Common Law

Before:

McHugh JA

Decision:

(1)   Dismiss the amended summons.

(2)   Order that the plaintiff pay the costs of the first defendant in this Court.

(3)   Direct the first defendant to file and serve by 5 pm on 20 March 2025 any evidence on which it wishes to rely in seeking an order that in respect of the costs referred to in order 2 above, it be entitled to a specified gross sum instead of assessed costs, including any evidence quantifying those costs.

(4)   Direct the plaintiff to file and serve any evidence on which it wishes to rely in response to the evidence referred to in order 3 by 5 pm on 27 March 2025.

(5)   Direct the parties to exchange submissions not exceeding 3 pages in length on the question whether the first defendant should be entitled to a specified gross sum instead of assessed costs, and if so in what sum, by 5 pm on 3 April 2025.

(6)   The application referred to in order 3 above be determined on the papers.

Catchwords:

ADMINISTRATIVE LAW — judicial review — whether evidence served on applicant – whether applicant denied procedural fairness

ADMINISTRATIVE LAW — judicial review — alternative relief by way of internal appeal not availed of — avoidance of statutory scheme for appeals — absence of satisfactory explanation — value of claim small — whether statutory power to refuse judicial review should be exercised

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 32, 34(1)(c), 34(2), 80, 81, 83

Civil Liability Act 2002 (NSW), s 16(1)

Civil Procedure Act 2005 (NSW), 98(4)(c)

Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 54, 55

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fong BHNF Fong v Weller [2024] NSWCA 46

Hamod v State of New South Wales [2011] NSWCA 375

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Makowska v St George Community Housing Ltd [2021] NSWCA 249

Makowska v St George Community Housing Ltd [2021] NSWSC 287

Shapkin v The University of Sydney [2024] NSWCA 156

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Category:

Principal judgment

Parties:

Sanjeev Khanna (Plaintiff)
Bunnings Group Limited trading as Bunnings (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)

Representation:

Counsel:
Plaintiff (self-represented)
R Hudson (First Defendant)
Second Defendant (submitting appearance)

Solicitors:
Plaintiff (self-represented)
Lander & Rogers (First Defendant)

File Number(s):

2024/00241017

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

NSW Civil & Administrative Tribunal (NCAT)

Jurisdiction:

Consumer and Commercial Division

Date of Decision:

19 June 2024

Before:

P Gardner, General Member

File Number(s):

2024/00012887

JUDGMENT

1. McHUGH JA: By an amended summons filed on 19 November 2024, the plaintiff seeks judicial review of a decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) given in its Consumer and Commercial Division on 19 June 2024. That decision dismissed the plaintiff’s claim for compensation arising out of the circumstances set out below.

2. This would have been a strong case for exercising the power in s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) to refuse to conduct a judicial review of the Tribunal’s decision. However, one of the reasons for exercising the s 34(1)(c) power adversely to the plaintiff would have been the lack of apparent merit in his grounds for review. The application for judicial review was fully argued. As explained below, that entailed the parties providing further evidence and submissions on one of the grounds of review after the hearing.

3. The Court is therefore in a position to dispose of the application on its merits, and in the circumstances that is the appropriate course. It is in the interests of justice that there be finality to the plaintiff’s claims, at least to the extent possible on judicial review. Since there was neither any error of law on the face of the record nor any jurisdictional error in the Tribunal’s decision, the amended summons should be dismissed on its merits.

The plaintiff’s claim in the Tribunal

4. On 12 August 2023, the plaintiff purchased a bottle of Garden Basics Weed Kill Concentrate (the Weedkiller) from the first defendant (Bunnings). He required a product which would treat weeds in the lawn of a property which he was leasing, without damaging the grass.

5. The plaintiff alleged, and so much does not appear to have been in doubt before the Tribunal, that when he applied the Weedkiller to his lawn and other areas of grass around his home, including a council-maintained nature strip, the Weedkiller caused damage to the lawn.

6. The plaintiff’s claim in the Tribunal was based on the following central factual allegations, which were disputed.

1. That prior to the purchase on 12 August 2023, an employee of Bunnings had advised him that the Weedkiller would not kill the grass in his lawn.

2. That the packaging of the Weedkiller did not expressly warn that it would damage a lawn; instead, it conveyed that the Weedkiller could be used on a lawn without damaging the grass.

7. The plaintiff did not take issue with the way in which the Tribunal described his claims. As recorded by the Tribunal, they were founded in misleading or deceptive conduct, contrary to s 18 of the Australian Consumer Law (ACL); misrepresentation or fraud; negligent infliction of emotional distress; the consumer guarantees in ss 54 and 55 of the ACL; “consumer protection laws”, in a manner which was not particularised; and “unfair practices” in relation to Bunnings’ complaints handling process.

8. Before the Tribunal, the plaintiff sought compensation of $5,000 on account of a liability incurred to his landlord for remedial work to the lawn, and $15,000 for non-economic loss for distress, anxiety and disappointment following the damage to the lawn.

9. Photographs of the Weedkiller, including its label, were in evidence before the Tribunal. At least some of that material, including photographs of the label, was in evidence in this Court as part of the plaintiff’s procedural fairness complaint discussed below. The plaintiff gave oral evidence on affirmation in the Tribunal.

10. The central findings by the Tribunal were made in the context of the misleading or deceptive conduct claim as follows (noting that there was no paragraph numbered 19):

“18.    Having heard and considered the available evidence, I am not satisfied on the balance of probabilities that:

(a)    Before purchasing the Product, a representative of the respondent advised the applicant that the Product could be used on the lawn without damage to the grass in the lawn; or

(b)    The Product is labelled in a way that suggests it is a targeted weed killer, or that it can be used on a lawn without damaging the grass.

20.    I accept that the applicant had a discussion with a staff member of the respondent at the Marsden Park store on 12-Aug-2024 [sic], however the details given by the applicant about that discussion [were] inconsistent and not adequately clear. The substance of that discussion was recounted in different terms in the hearing, in his documentary evidence and in his email correspondence with the respondent. In cross-examination, he could not offer specific details about the discussion or the identity of the person he spoke to. In those circumstances, I do not consider it more likely than not that a staff member of the respondent would give advice about use of a Product which is directly inconsistent with the labelling of the Product. It is possible, for example, that the applicant had a discussion with a staff member of the respondent and has misunderstood a recommendation, or been offered a recommendation which was in more qualified terms.

21.   In relation to the labelling on the Product, it’s clear that it will kill a broad range of plants including a number of different types of grass. It is not reasonable to expect the label to expressly list each variety of plant it will kill but, more importantly, I do not accept that when read fairly the label gives the impression that the Product is a targeted weed killer. It includes the phrases ‘Avoid contact with crops, desirable plants and trees since injury may result’ and ‘for control of weeds and grasses’. I consider that the labelling of the Product needs to be given significant weight in relation to any claim about a misrepresentation or misleading or deceptive conduct. I consider that a reasonable person would have given at least some consideration to the labelling of the product, and that if the applicant had done so, he would have sought to clarify the recommendation or else tested the Product on a small area of lawn.”

11. In light of those findings, the Tribunal dismissed the misleading or deceptive conduct claim. The Tribunal did not address the question whether, if the representation that the Weedkiller could be used on a lawn without killing the grass had been made as alleged, it would have been misleading or deceptive. But in light of what the Tribunal said in the context of the labelling at [21], “it’s clear that it will kill a broad range of plants including a number of different types of grass”, there is no room to doubt that that is what the Tribunal would have found.

12. As to the claim for misrepresentation or fraud, this was dismissed at [25] “for substantially the same reasons” as the claim in misleading or deceptive conduct.

13. As to the claim for negligent infliction of emotional distress, the Tribunal held, relying on Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, that there is no such cause of action in Australia. The Tribunal also said,

“To the extent that this is a claim for psychiatric injury (the applicant raised adverse health effects from glyphosate in general terms during the hearing), it must also be dismissed by operation of s 16(1) of the Civil Liability Act 2002 (NSW).”

14. Although the Tribunal did not expand upon the point, in the cases to which it applies s 16(1) provides that no damages may be awarded for certain types of non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

15. As to the unparticularised claim under “consumer protection laws”, the Tribunal said,

“26. During the hearing, the applicant was invited to identify the consumer protection laws which he relied on in support of this claim. He did not do so. He asked the Tribunal to identify such laws. While this is understandable in circumstances where the applicant is not legally represented, it’s not procedurally fair for the Tribunal to raise potential new causes of action (particularly without prior notice to the respondent). In any event, I do not consider that the application raises any consumer protection laws other than the guarantees at ss 54 and 55 of the ACL, which I have addressed below. Accordingly, this part of the claim must be dismissed.”

16. As to the claim under the consumer guarantees under the ACL, the Tribunal referred to the regime by which damages can be claimed for failure to comply with the guarantees at [16]-[17]. Section 54 is, as the Tribunal noted, a guarantee that goods will be of acceptable quality. The definition of acceptable quality in s 54(2) includes that they are fit for all the purposes for which goods of that kind are commonly supplied and free from defects. Section 55 is a guarantee that goods are reasonably fit for a purpose disclosed by the consumer to (relevantly) the supplier, and for any purpose for which the supplier represents that they are reasonably fit.

17. The Tribunal dismissed the consumer guarantees claim on the basis that in light of the findings on the misleading or deceptive conduct claim, “I am not satisfied that the respondent [sic] has established that the Product is not of acceptable quality, or that it was not fit for a disclosed purpose”: at [27].

18. As to the claim of “unfair practices”, having rejected the substantive claim in respect of the Weedkiller, the Tribunal found that the plaintiff’s claim about Bunnings’ complaints handling process could not be maintained: at [28].

The plaintiff’s grounds for judicial review

19. Other than an order “in Certiorari … quashing the decision of NCAT”, the relief sought in the amended summons is not relief available in the supervisory jurisdiction of this Court. Instead, the relief is directed to vindication of the plaintiff’s substantive claims.

20. The plaintiff raised a large number of complaints about the decision of the Tribunal. The grounds of complaint were identified not only in the amended summons, but in the various submissions documents referred to below, which often articulated the same basic point in different language. Very many of those complaints went to the merits of, and in particular the factual findings in, the Tribunal’s decision. Those complaints are not amenable to judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). It is necessary to identify either (a) an error of law on the face of the record, which for these purposes includes the reasons of the Tribunal: s 69(4); or (b) a jurisdictional error.

21. Save for the procedural fairness ground, which requires some explanation, to the extent that the plaintiff’s grounds of complaint purported to articulate an error, they lacked substance.

The procedural fairness ground: reliance by Tribunal on documents not served?

22. The ground at [13] of the amended summons included the following: “The Defendant failed to serve any evidence to the Plaintiff, which came as a surprise and contradicted the Defendant’s own statements. Furthermore, the Plaintiff incurred fees paid to NCAT to obtain the evidence that was not served.”

23. Although the specific subject matter of this ground was obscure, it became clear at the hearing of the amended summons that the plaintiff’s allegation was that Bunnings had provided evidentiary material to the Tribunal, on which the Tribunal acted, of which the plaintiff had been unaware until after the Tribunal delivered its decision: Tcpt, 3 December 2024, 17/9-20/30; 20/49. If so, that would potentially raise a reviewable error involving a denial of procedural fairness.

24. The material with which this ground is concerned was contained in a series of appendices to Bunnings’ Form 7B — Notice of Defence before the Tribunal, which was dated 21 February 2024 (Defence). The Defence stated at [5] that as part of its investigation process Bunnings had contacted the supplier of the Weedkiller, which confirmed that “the customer [had] selected the incorrect product if their intention was to kill weeds in their lawn.” Appendix 4 to the Defence was an email from the supplier of the Weedkiller to a representative of Bunnings which included statements to that effect. The email also stated that the Weedkiller “is a non-selective herbicide which kills all plants & grasses it comes in contact with.” The email included photographs of the label on the Weedkiller bottle which included the statements to which the Tribunal referred, as noted above. The label also contained a table indicating the appropriate dilution of the Weedkiller for various plants which were listed in a column under the heading “WEEDS CONTROLLED”. The “weeds” in this column included a number of named species of grass.

25. The Defence also included as Appendix 2 a statement from one of the Bunnings Marsden Park employees in the Garden Care section, Ms Sophie Barker. She confirmed that if the Weedkiller was sprayed on a lawn it would likely kill the whole lawn, “because it is systemic and will spread”. Ms Barker’s statement referred to “a customer who had experienced an incorrect recommendation for his lawn on the 12^th of August 2023” and “[t]he product that the customer was recommended (Garden Basics 1L concentrate)” (emphasis supplied). In light of Ms Barker’s statement that she did not recall assisting the customer on 12 August 2023, her references to a recommendation must be understood as an assumption that Ms Barker was making. The Tribunal’s description at [7] of Ms Barker as having “assisted the applicant on 12-Aug-2024” was inaccurate (both as to the year and as to her having assisted).

26. Until the hearing of the amended summons, Bunnings had not appreciated that the plaintiff was alleging that he had not been aware of this material, or that he had only obtained it from the Tribunal after the Tribunal gave its decision: Tcpt, 3 December 2024, 20/32-33. When that became clear at the hearing, Bunnings’ counsel asserted from the Bar table that Bunnings had emailed its Defence (i.e., including the Appendices) to the plaintiff by way of service on 21 February 2024 (Tcpt, 3 December 2024, 20/32-33), and showed the plaintiff a copy of the email. The plaintiff agreed that the email address used in that email was his email address (Email Address), but he asserted that he did not receive it: Tcpt, 3 December 2024, 21/33.

27. In light of the potential significance of the issue, the parties were directed to file affidavits and submissions “addressing the question of the service of the material commencing at page 96 of the Court Book”, i.e., the Defence and its Appendices.

28. Bunnings filed an affidavit of Ms Sofia Macedo, a Customer Relations Coordinator employed by Bunnings, made on 6 December 2024. I have taken that affidavit as read on the hearing of the amended summons. As to service by email, that affidavit established the following matters (which I did not understand the plaintiff’s responsive affidavit to dispute).

1. The Email Address was the one provided by the plaintiff on his Application Notice dated 11 January 2024 filed in the Tribunal.

2. The plaintiff sent his own submissions to the Tribunal from the Email Address on 8 February 2024, sent also to Ms Macedo.

3. By email responding to the plaintiff’s 8 February 2024 email, another employee of Bunnings (who is currently on maternity leave) sent the Defence and its Appendices to the Email Address on 21 February 2024, copied to the Tribunal and to Ms Macedo. The Tribunal responded to that email (thus demonstrating that the Tribunal had received it), and copied Ms Macedo.

4. In May 2024, Ms Macedo sent emails to the Email Address, to which the plaintiff replied on three occasions. She was unaware of any incidents before or after the email which attached the Defence on 21 February 2024 in which the plaintiff did not receive material served on him.

29. The affidavit also referred to statements on information and belief from the Bunnings employee on maternity leave in relation to sending the Defence to the plaintiff by registered post. Given that this evidence was hearsay, and the plaintiff has not been heard in relation to it, I have not relied on it.

30. The plaintiff filed an affidavit made on 7 December 2024, which I have also taken as read on the hearing of the amended summons. This went far beyond the question of the service of the Defence and its Appendices. It contained a number of scandalous conclusory allegations for which it provided no proper basis, which I have disregarded. The affidavit also sought to reagitate various matters, unrelated to the question of the service of the Defence, which had been the subject of the plaintiff’s earlier submissions. At several points the affidavit proceeded on the footing that it was for Bunnings to prove that the plaintiff had been aware of the material, rather than for the plaintiff to prove on his summons that he had not. Thus it was said that Bunnings had not provided clear evidence of delivery, “such as an Australia Post confirmation with the Plaintiff’s signature.” In his written submissions filed on 18 December 2024, the plaintiff similarly submitted at [21] that the “Plaintiff has not been provided with adequate proof that the email was actually received, opened, or acknowledged.”

29. The plaintiff’s affidavit did not address any investigation he might have made into the fate of Bunnings’ email of 21 February 2024 which had been directed to his Email Address. For example, it did not say that he had searched his email inbox and been unable to locate a copy of the email. The plaintiff did not proffer any explanation for how the 21 February 2024 email might have gone astray, given that both the Tribunal and, evidently, Ms Macedo had received it. Instead, the only evidence he gave in the body of the affidavit that was directly relevant was as follows:

“26.   Files Received from NCAT, Not the Defendant — I affirm that the files and documentation relevant to this case that are in my possession were obtained solely from the New South Wales Civil and Administrative Tribunal (NCAT). These files were provided to me by NCAT following my request. I further clarify that none of these files or documents were received directly from the Defendant, Bunnings Group Limited.”

(Emphasis supplied.)

32. It is notable that that paragraph does not expressly refer to email at all. The italicised language is specific as to the particular copies of the documents being described. The last sentence of this paragraph might mean either that the plaintiff did not receive the particular files or documents “that are in my possession” directly from Bunnings, or else that he did not receive any copies at all of those documents from Bunnings. Also, the word “receive” is ambiguous here. Bunnings drew a distinction between “receiving” an email and actually reading it: Tcpt, 3 December 2024, 45/10-24. As Bunnings used the word, it meant only that the email had been successfully sent to the plaintiff’s Email Address from which it could be retrieved or opened. A third, intermediate, possibility is that the plaintiff’s use of the word “received” here might mean that the plaintiff had not retrieved the 21 February 2024 email from the Email Address (whether or not the email had been successfully sent to that address).

33. Whether or not the email had been successfully sent to the Email Address, the proposition that the plaintiff had been unaware of Bunnings’ Defence and its Appendices before the hearing in the Tribunal is at least consistent with the portions of two email exchanges that the plaintiff had had via the Email Address with the registry of NCAT, which the plaintiff annexed to his affidavit. At least one of those exchanges was on 20 June 2024 (the day after the Tribunal gave its decision); the portion of the other exchange annexed to the affidavit was not dated. In both email exchanges, the plaintiff sought copies of the listed documents that the Tribunal had described at [7] as “[t]he respondent’s documentary evidence” (that is, the Defence and its Appendices). The plaintiff asserted in the two emails to NCAT that those documents had not been sent to him and that they had come as a surprise.

34. By its submissions filed on 12 December 2024, Bunnings submitted that the plaintiff’s affidavit contained no more than bare assertion that he never received the email, without documentary or other detailed evidence. Bunnings submitted that the evidence established on the balance of probabilities that the Defence and Appendices were served on the plaintiff.

35. Bunnings also referred to a transcript of the proceedings before the Tribunal. Among other things, the transcript demonstrates that the Tribunal Member referred to the material in the Appendices to the Defence on several occasions.

1. When explaining the process at the start of the hearing, the Tribunal Member explained that one of the things he would do was “to check that I have the evidence that you’ve provided”: NCAT Tcpt, 8 October 2024, 2. Directing himself to the plaintiff, the Member said, “if Bunnings brings up anything that is new and surprising that you feel you haven’t had an opportunity to contend with, you’ll have an opportunity to give evidence in reply.”

2. The Tribunal confirmed with the plaintiff that his email address on file was the Email Address: NCAT Tcpt, 8 October 2024, 5. This was for the purpose of sending the orders and reasons to the parties: NCAT Tcpt, 8 October 2024, 3.

3. The Tribunal identified the documentary material that each party had provided to the Tribunal. As to the plaintiff’s own material, the Tribunal stated that it had, among other documents, colour photographs of the product, i.e., the Weedkiller: NCAT Tcpt, 8 October 2024, 8-9.

4. As to Bunnings’ documentary material, the Tribunal said the following (NCAT Tcpt, 8 October 2024, 9):

“I’ve got some documents that have been filed. The documents run to 16 pages I think. You’ve got the details of the response to the claim and some appendixes which include a copy of the receipts and photos of the product packaging and email correspondence with the supplier of the product. Is - does it sound like I’m missing anything from the documents that are filed?”

(Emphasis supplied.)

Bunnings’ representative before the Tribunal, Ms Macedo, confirmed that was correct.

5. The Tribunal member indicated that he had not yet read all of the Bunnings documents but then said that he was going to make sure that he read the Bunnings documents before he made a decision: NCAT Tcpt, 8 October 2024, 11.

6. At 16-17, the Member then summarised his understanding of Bunnings’ arguments, (a) about any oral representation, and (b):

“… that, in any event, the product is adequately labelled to show that it will damage - it’s a non-selective spray or weedkilling substance and would cause damage to anything that it’s applied to and to support this there’s some photographs of the packaging and the correspondence from the manufacturer about the way in which selective and non-selective weed control products are set in different locations in the store.”

(Emphasis supplied.)

7. After the plaintiff was questioned by Ms Macedo, the Tribunal Member said the following (NCAT Tcpt, 8 October 2024, 18):

“Okay. All right. So I suppose the next issue then is Mr [Khanna], did you have anything you’d like to ask Ms Macedo about the evidence? I suppose when I say the evidence what I’m really referring to here is the documentary evidence that Bunnings has supplied because that’s what Bunnings is relying on here, not any separate — which makes sense. Ms Macedo’s not the person who was working in Marsden Park. So do you have anything you’d like to ask them about the documents they’ve filed or anything you’d like to say in reply to those documents?”

(Emphasis supplied.)

The plaintiff replied, “Well, the documents I’m - no, no.”

8. Later, addressing the plaintiff, the Tribunal Member said, “But I’ll go back through, I’ll revisit the submissions, make sure I read in detail through the documents Bunnings has provided and then I will prepare the decision considering each of those grounds that are identified on pages 3 and 4 of your documentary evidence and making sure that we work through each of them for you as well”: NCAT Tcpt, 8 October 2024, 19.

9. At no point did the plaintiff suggest that he had not been served with, or was unaware of, the documents to which the Tribunal member was referring.

36. Bunnings also submitted that r 13(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that documents may be served by email transmission, and that r 13(4) in combination with s 13A of the Electronic Transactions Act 2000 (NSW) deems an email to be received when it becomes capable of being retrieved at the email address. In view of the conclusions I have reached based on what occurred at the hearing in the Tribunal, I have not found it necessary to resolve the deeming issue.

Consideration

37. It appears that the Tribunal acted on the material in the Appendices to the Defence: see, e.g., at [21] quoted above in relation to the labelling on the Weedkiller. But the Tribunal had taken care to identify the material that the parties were relying on. The Tribunal Member specifically referred to Bunnings’ “response to the claim and some appendixes which include a copy of the receipts and photos of the product packaging and email correspondence with the supplier of the product”. He called the documents “the Bunnings documents” and said he was going to make sure he read them before he made a decision.

38. Most significantly, the Tribunal Member specifically asked the plaintiff about “the documentary evidence that Bunnings has supplied because that’s what Bunnings is relying on here”, and asked the plaintiff directly whether he had “anything you’d like to ask them about the documents they’ve filed or anything you’d like to say in reply to those documents”. To which the plaintiff responded, “Well, the documents I am - no, no.”

39. There is no suggestion that Bunnings had “supplied” or “filed” any “documentary evidence” other than the material about which the plaintiff now complains. Indeed, it is not obvious what other documents the plaintiff could have thought the Tribunal was referring to when the Member asked him about the Bunnings documents. In any event, there was nothing more that the Tribunal should have done to draw the existence of that material to the attention of the plaintiff, or to invite him to question Bunnings’ representative, Ms Macedo, about it, or otherwise to make submissions about it. On the assumption that the plaintiff was unaware of the Bunnings material before the hearing, he was given every procedurally appropriate opportunity to say so. And in the circumstances disclosed by the evidence described above, in which there was no suggestion that the plaintiff had not “received”, retrieved or read any earlier emails, this is not a case where either the Tribunal or Bunnings had any reason to think that the plaintiff was unaware of the material.

40. The plaintiff’s fundamental complaint is that he did not know that this material existed. But he was told that it did, and he acted at the hearing before the Tribunal as if he knew that it did. There was thus no denial of procedural fairness, and this ground of review should be dismissed.

41. That is a conclusion reached by reference to what happened at the hearing in the Tribunal itself. The conclusion that there was no procedural unfairness does not depend on the question whether the plaintiff was aware of the 21 February 2024 email attaching the Defence and its Appendices.

42. For that reason, I do not consider it necessary to determine whether the plaintiff was in fact aware of the email or its attachments. In any event, the state of the evidence on that issue is unsatisfactory. The plaintiff deposed in his affidavit that “none of these files or documents” (i.e., “that are in my possession”) “were received directly from the Defendant”. That statement was ambiguous in the way described above, but on any version the plaintiff should be understood as denying that he was aware of the attachments to the email. There was no further hearing after the affidavit was filed, and accordingly no cross-examination on it. That was in accordance with Bunnings’ position at the hearing of the amended summons: Bunnings had stated unequivocally that it would not be “seeking to cross-examine, under any circumstances, as to whether [the plaintiff] read the email” of 21 February 2024, and that it would not cross-examine as to the distinction between “received” and “read”: Tcpt, 3 December 2024, 45/10-24. That being so, it would not now be appropriate for the Court to infer from the Tribunal transcript, as Bunnings submits the Court should at [26] of its submissions dated 12 December 2024, that “the plaintiff was aware of [the] Bunnings documents and did not want to engage with those documents”. In those circumstances it is preferable not to make any finding, it being unnecessary to do so.

43. The same is not, however, true of the question whether the 21 February 2024 email and its attachments were successfully sent to the plaintiff’s Email Address. Bunnings had made clear at the hearing that that was its case, and there is substantial evidence in favour of drawing that inference. The plaintiff successfully used his Email Address to receive emails in the period in question. There is no suggestion in the evidence that any other email to the plaintiff went astray. In the absence of clear evidence to the contrary, there would be every reason to think that the same email that was successfully sent to the Tribunal on 21 February 2024 also reached the plaintiff’s Email Address. The plaintiff’s evidence that “none of these files or documents were received directly from the Defendant” was not clear evidence to the contrary. It did not directly address the question of the 21 February 2024 email; there was no evidence from the plaintiff as to any investigation he made, for example, by checking his email inbox. The plaintiff’s evidence was also ambiguous. It was consistent with the email’s having been successfully sent to the plaintiff’s Email Address: the plaintiff might simply not have retrieved the email so as to “receive” it.

44. In those circumstances, it is appropriate to find that the 21 February 2024 email and its attachments were successfully sent to the plaintiff’s Email Address. As that was the plaintiff’s email address for service in the Tribunal, that is a further reason for concluding that there was no denial of procedural fairness with respect to this material.

45. One further matter as to procedural unfairness should be noted. On the assumption that there was a denial of procedural fairness and that the plaintiff was unaware of the Appendices to Bunnings’ Defence, the question arises whether the error was material to the decision, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

46. LPDT explained the proper approach to questions of materiality in this context at [6]-[16]. The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred: at [13]. Relevantly for errors of the kind claimed here (see at [7], [13]), the question is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error: at [14]. “Realistic” here means not fanciful or improbable. Thus it was said at [14]: “Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.”

47. Specifically as to denials of procedural fairness, their Honours said the following at [15] (footnotes omitted):

“Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is ‘no easy task’ for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.”

48. It is therefore necessary to pay close attention to how the material in the Appendices to Bunnings’ Defence could have been relevant to the plaintiff’s claims, and to how the decision dismissing his claims was in fact made. The plaintiff himself put into evidence before the Tribunal photographs of the Weedkiller (NCAT Tcpt, 8 October 2024, 8-9), and his claim was based in part on alleged deficiencies in the labelling on the packaging. To the extent that the Appendices to the Defence included photographs of the labelling, they were more of the same. The statement of Ms Barker and the email from the supplier showed that the Weedkiller was not a selective herbicide. That fact was helpful to the plaintiff because, if he established the representation that he alleged as to the product’s suitability for his use, the fact that the Weedkiller was not a selective herbicide would go a long way towards establishing that the representation was false and that at least the consumer guarantee in s 55 of the ACL had been breached. However, the fact that the Weedkiller was not a selective herbicide (i.e., it was the wrong product for the plaintiff’s use) was not in dispute. The Tribunal was plainly aware that this material showed that the Weedkiller was the wrong product for the plaintiff’s use. Thus, the Tribunal referred at [7] to the email correspondence from the manufacturer “advising that the Product is not a selective weed killer”. That was also the implicit premise for the analysis of the sufficiency of the labelling of the Weedkiller at [21].

49. The basis upon which the plaintiff’s claims were in fact dismissed by the Tribunal is to be understood in that context. The finding at [18] was that the plaintiff had not discharged his onus of establishing that the oral or the written representations he alleged were made. As to the oral representations, the reasoning at [20] was based entirely on problems in the plaintiff’s own evidence, including in cross-examination, and on the improbability that a Bunnings staff member would make a representation directly inconsistent with the labelling of the Weedkiller. That reasoning did not involve anything in the Appendices to the Defence, other than the photographs of the product (which were part of the plaintiff’s case in any event). As to the written representations, the reasoning at [21] was that the labelling did not convey the representation that the Weedkiller was a “targeted weed killer”. Instead, on the accepted premise that the Weedkiller was not a selective herbicide and was therefore the wrong product for his use, the labelling on the Weedkiller was sufficient in any event.

50. That being so, the claim in misleading or deceptive conduct was dismissed at an earlier point in the analysis than the falsity of any representation (or the suitability of the Weedkiller for the plaintiff’s use), which were the issues to which the material in the Appendices was relevant. As noted above, the claim for breach of the consumer guarantees was dismissed based on the same reasoning at [27]: the plaintiff had not established that the Weedkiller was “not fit for a disclosed purpose”.

51. Given the way in which the decision was in fact made, it should be concluded that there is no realistic possibility that the outcome of the decision could have been different had the claimed error not been made.

Other grounds in the amended summons

52. Stripped of conclusory allegations using the language of judicial review, the remaining grounds identified in the amended summons are as follows. It is convenient to deal with each ground in turn.

The allegation of concealment by Bunnings

53. The circumstances that gave rise to the procedural fairness issue just addressed also led to an allegation that the plaintiff made at various points to the effect that Bunnings had attempted “to conceal” relevant information, including the email from the product’s supplier. There is no basis for this allegation. Far from concealing the material, Bunnings attached it to its Defence that was filed with the Tribunal and (at the very least) attempted to email it to the plaintiff. In any event, in the way in which it was put, the allegation does not give rise to any jurisdictional error or identify any error of law on the face of the record, beyond the procedural fairness ground.

The claim for emotional distress

54. There was a series of grounds relating to non-economic loss, in particular, emotional distress.

1. [5.1] The Tribunal “failed to adequately consider the distress and other non-economic damages as part of its decision to dismiss the plaintiff’s claim. The plaintiff contends that, in dismissing the claim, NCAT did not sufficiently account for the full spectrum of harm experienced, specifically non-economic damages, such as emotional distress.”

2. [6.1] “The plaintiff seeks to appeal to the Supreme Court on a question of law, focusing on whether NCAT was obligated to consider non-economic damages under Australian Consumer Law (ACL) and the Civil Liability Act 2002 (NSW).”

3. [9] “The plaintiff asserts that the Civil Liability Act provides scope for non-economic losses, which NCAT allegedly disregarded. Section 16 sets a threshold that non-economic losses must meet; however, if met, it mandates consideration of such losses.”

4. [10.1] “The plaintiff argues that NCAT’s actions may have led to a jurisdictional error … by dismissing the non-economic aspects of the claim. Given NCAT’s lack of appeal options on this specific matter, the plaintiff requests judicial review by the Supreme Court”.

55. The basic problem with the plaintiff’s submissions about non-economic loss is that no question of damages for such loss arises without a finding of liability. To the extent that the plaintiff claimed damages for non-economic loss as part of his claims under the ACL, those claims failed on the basis that the plaintiff had failed to discharge his onus of establishing either a breach of the prohibition on misleading or deceptive conduct, or a failure to comply with obligations arising under the consumer guarantees. Those were findings of fact based on the Tribunal’s assessment of the evidence before it, and are not susceptible of judicial review.

56. Nor was there any reviewable error in the Tribunal’s approach to the claim in negligence. There is no cause of action in negligence for the infliction of emotional distress falling short of a recognised psychiatric injury. And the Tribunal’s reference to s 16(1) of the Civil Liability Act should be understood as entailing a finding of fact on the evidence before the Tribunal that, even if the claim was understood as a claim for personal injury, the severity of any injury did not meet the statutory threshold.

57. Finally, the reference to “NCAT’s lack of appeal options” is without foundation in light of the right of internal appeal to an Appeal Panel in s 80 of the CAT Act.

The disability pension

58. At [11] of the amended summons, after the heading “Further Grounds for Relief”, the plaintiff referred to the fact that he is a recipient of a disability pension and had suffered significant hardship in having to compensate the landlord for landscaping damages. At the hearing of the amended summons, the plaintiff acknowledged that the Tribunal accepted that he was a recipient of a disability pension: Tcpt, 3 December 2024, 14/49. He made no complaint on that score. This issue gives rise to no error, still less a reviewable error.

The plaintiff’s grounds in his 29 November 2024 “Response to NCAT Decision with Contradictions”

59. Separately from the grounds addressed in the amended summons, the plaintiff attached to the copy of the Tribunal’s decision which he provided to the Court a document dated 29 November 2024 headed, “Plaintiff’s Response to NCAT Decision with Contradictions”. That document raised various further grounds of complaint about the decision. To the extent that they go beyond those in the amended summons, they are as follows. Again, it is convenient to deal with them in turn.

Failure to address the plaintiff’s evidence adequately

60. At [1.1], the plaintiff complained that “[t]he Tribunal summarized the Plaintiff’s claims regarding misleading advice and product damage but failed to address the Plaintiff’s evidence adequately.” The plaintiff made similar complaints at [2.1], including in relation to the sufficiency of the label as a warning against using the Weedkiller on lawns, and at [3.1] (“Overlooking sworn testimony from the Plaintiff regarding the advice given by a Bunnings staff member.”). The plaintiff similarly said at [4.1], “Evidence from the Plaintiff showing the lawn damage caused by the product was inconsistent with its alleged suitability for use on grass.”

61. None of these complaints is sustainable. The Tribunal did not overlook the plaintiff’s evidence about these matters. The Tribunal referred to the plaintiff’s evidence but was not persuaded by it. The reasons at [18]-[21] explained why that was so. The plaintiff made clear at the hearing of the amended summons that his complaint was not that the Tribunal did not listen to his evidence but that the Tribunal did not accept it. That is a complaint as to the merits and in particular as to findings of fact made adversely to the plaintiff. It does not give rise to any ground of judicial review.

62. At the hearing of the amended summons, the plaintiff also referred to the “[f]ailure of NCAT to address key claims” (Tcpt, 3 December 2024, 11/32), being his claim “that the product was not selective product for the grass” (Tcpt, 3 December 2024, 11/40). The Tribunal plainly did address the plaintiff’s claim at [18]ff. Although the plaintiff used the word “address”, the substance of his complaint is that his claim was not upheld. That conclusion is not reviewable.

Failure to provide guidance to a self-represented litigant

63. At [6.1], the plaintiff said,

“The Tribunal placed undue procedural burdens on the Plaintiff as a self-represented litigant by:

Failing to require the Defendant to produce critical evidence, such as the original label or team member logs, to substantiate its claims.

Not providing adequate guidance to the Plaintiff regarding applicable legal principles, such as the ACL’s protections.”

64. As to the first of these matters, when asked at the hearing of the amended summons, the plaintiff did not suggest that he had sought any order that Bunnings produce such evidence: Tcpt, 3 December 2024, 12/31-13/23. Instead, the plaintiff’s complaint is that the Tribunal should have taken it upon itself to require Bunnings to produce certain material. That misconceives the role of the Tribunal. It also proceeds from a mistaken premise, namely, that Bunnings was relevantly making a “claim”. Bunnings did not bear the legal onus before the Tribunal; the plaintiff did.

65. As to the second matter, it is true that, as Beazley JA said in Hamod v State of New South Wales [2011] NSWCA 375 at [311],

“… a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial.”

66. Importantly however, as her Honour said at [312], the duty of a trial judge, even in a criminal case, “does not extend to advising the accused as to how his or her rights should be exercised”. Thus, “it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”. To do so would be to depart from the role of impartial arbiter. In Makowska v St George Community Housing Ltd [2021] NSWCA 249 at [20], the Court similarly cautioned against conferring an unfair advantage on unrepresented litigants by reason of excessive curial assistance. That is in substance what the plaintiff complains the Tribunal failed to do.

67. Neither of these matters gives rise to an error of law on the face of the record or to jurisdictional error.

Apprehended bias

68. At [7.1] (see also at [8.1]), the plaintiff said, “The Tribunal’s reliance on the Defendant’s submissions, despite their lack of substantiating evidence, reflects apparent bias.” The plaintiff referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.

69. The Ebner test is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: at [6]. The test involves two steps: first, identification of what is said might lead a judge (or tribunal) to decide a case other than on its legal and factual merits; secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: see at [8].

70. In this case, the plaintiff’s argument rose no higher than the fact that the Tribunal was not ultimately persuaded by his evidence: see at Tcpt, 3 December 2024,14/15-18. As noted above, the plaintiff bore the legal onus. The Tribunal found that the plaintiff had not discharged it. The fact that the Tribunal arrived at that conclusion in circumstances in which Bunnings did not lead direct testimonial evidence to contradict the plaintiff’s account of what he was told by an unidentified staff member is simply a consequence of the burden of proof. The same happens in proceedings every day. It is no basis for a fair-minded lay observer reasonably to fear that the Tribunal may have deviated from deciding the case on its merits.

Irrelevant testimony from a Melbourne team member

71. At [7.2], after the heading “Irrelevant Testimony from a Melbourne Team Member”, the plaintiff referred to the statement from Ms Sophie Barker who, the plaintiff said, was based in Melbourne despite the transaction occurring at Marsden Park, Sydney. This involved a basic misunderstanding. Ms Barker, as her statement records, was an employee at Bunnings Marsden Park. Her evidence was not irrelevant. It may be that the plaintiff confused her with a different employee of Bunnings, Ms Sofia Macedo, who is based in Melbourne and acted as the advocate for Bunnings before the Tribunal.

The plaintiff’s complaints made in other documents

72. The plaintiff also canvassed various complaints in his affidavit made 24 September 2024, in his submissions dated 14 November 2024, and in his two sets of submissions dated 23 November 2024. None of those adds to the complaints referred to above.

Conclusion on the plaintiff’s grounds of judicial review

73. The plaintiff has failed to identify any error of law on the face of the record or any jurisdictional error. The amended summons should be dismissed on its merits.

Section 34(1)(c) of the Civil and Administrative Tribunal Act

74. If the amended summons was not to be dismissed on its merits, I would have dismissed it in the exercise of the power in 34(1)(c) of the CAT Act.

75. Section 34(1)(c) provides:

34   Inter-relationship between Tribunal and Supreme Court

(1) The Supreme Court may–

…

(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.

76. It does not appear to be in dispute that the Tribunal’s decision was made in its “general jurisdiction” (see s 29(1) of the CAT Act), and was therefore a “general decision” as defined in s 29(3). By s 32(1)(a), the Tribunal had “internal appeal jurisdiction” over that decision, which was thus an “internally appealable decision” as defined in s 32(4).

77. Section 80(1) of the CAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel of the Tribunal. By s 80(2)(b), such an “internal appeal” may be made “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.” That being so, the plaintiff could have lodged an “internal appeal” against the Tribunal’s decision, such that the s 34(1)(c) power to refuse to conduct a judicial review of that decision is engaged in this case.

78. An appeal pursuant to s 80 has obvious advantages from an appellant’s perspective compared to seeking judicial review in this Court. Being an appeal as of right on a question of law, it would encompass any issue in the nature of error of law on the face of the record or jurisdictional error. And where an appellant pointed to an error in the Tribunal’s findings of fact, subject to the requirement of leave, the Appeal Panel’s jurisdiction would extend to adjudicating upon the error. Just as importantly, the remedies available on an appeal pursuant to s 80 extend to resolving the dispute on its merits; they are not confined to those available on judicial review. Thus, s 81(1) provides that, 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 confirming, affirming or varying the decision under appeal.

79. By contrast, there is no obvious legal advantage from an appellant’s perspective in instead seeking judicial review as a plaintiff in this Court.

80. In light of the plaintiff’s complaints about the Tribunal’s decision (discussed above), it follows that an appeal pursuant to s 80 would have been a much more appropriate vehicle for the plaintiff to agitate those matters than his amended summons for judicial review in this Court.

81. However, s 34(2) makes clear that the s 34(1)(c) power to refuse to conduct a judicial review is discretionary:

34   Inter-relationship between Tribunal and Supreme Court

…

(2) This section–

(a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and

(b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.

82. As to paragraph (b), in Fong BHNF Fong v Weller [2024] NSWCA 46, Kirk JA observed at [29] that it was open to a court to decline to grant relief in judicial review cases where there was an equally effective and convenient remedy which the party could have pursued. As Griffiths AJA (Meagher JA agreeing) recently said in Shapkin v The University of Sydney [2024] NSWCA 156 at [43], s 34 of the CAT Act provides a statutory source for the discretion in the cases to which it applies.

83. In Makowska v St George Community Housing Ltd [2021] NSWSC 287 (“Makowska”), Basten J, sitting at first instance, addressed matters relevant to the exercise of the discretion to refuse relief in a situation similar, but not identical, to the present case. There the plaintiff had exercised her internal appeal rights pursuant to s 80(1) of the CAT Act, but her appeal to the Appeal Panel was unsuccessful. Section 83(1) of the CAT Act then provided for an appeal, by leave, from the decision of the Appeal Panel to the Supreme Court on a question of law. The effect of the Uniform Civil Procedure Rules 2005 (NSW) was that such an appeal had to be filed within 28 days after the decision of the Appeal Panel. Ms Makowska instead sought judicial review in the Supreme Court, some two months after the date of the Appeal Panel decision. In those circumstances, the power in s 34(1)(c) was engaged: see Makowska at [9] and footnote 2.

84. After noting that before Ms Makowska would be able to appeal, she would need to obtain an extension of time within which to file an application for leave to appeal to the Supreme Court, Basten J said at [8]:

“Unless there is a full explanation of why the path provided by the statutory appeal was not followed, and a clear indication that a substantial miscarriage of justice would occur if relief were not available in the supervisory jurisdiction, the proper course is to refuse any potentially available relief on discretionary grounds. The importance of the leave requirement is accentuated when an attempt is made to challenge a decision where no issue of legal principle is engaged and where the amount in dispute is insufficient to justify the costs involved.”

85. His Honour concluded at [48] that because Ms Makowska had failed, for no justifiable reason, to challenge the decision of the Appeal Panel by way of timely application for leave to appeal, it was open to the Court to dismiss the summons as a matter of discretion. However, as his Honour’s reasoning had also demonstrated that there was no error of law on the face of the record, nor any arguable case of jurisdictional error, his Honour concluded that the summons should be dismissed without considering discretionary refusal of relief: at [49].

86. There are differences between the present case and Makowska, but they do not on the whole weaken the case for discretionary refusal to conduct a judicial review. If anything they strengthen it.

1. If Ms Makowska had pursued a s 83 appeal to the Supreme Court she would have required leave, which may or may not have been granted. There are obvious reasons why the Court should not permit a statutory leave requirement to be circumvented by applications for judicial review.

2. While the concern to protect a leave requirement does not apply in the present case, there is a similar concern here about circumvention of the statutory scheme. No appeal lies directly to the Supreme Court from the Tribunal’s first instance decision, either pursuant to s 83 or (contrary to a submission the plaintiff appeared to make in reply (Tcpt, 3 December 2024, 50/8)) pursuant to s 80. The scheme of the CAT Act is to require an appeal to be brought to the Appeal Panel before an appeal may come to this Court. The plaintiff’s application for judicial review would have the effect of circumventing the statutory scheme for appeals from decisions of the Tribunal. The Court should be slow to permit that to occur.

3. Moreover, s 80 conferred on the plaintiff an appeal as of right to the Appeal Panel on a question of law. The fact that that right was not subject to leave emphasises the scheme of the Act referred to above, and the appropriateness of exercising that right, rather than seeking judicial review.

4. Finally, as to the timing of events, if at the time she sought judicial review, Ms Makowska had instead sought to pursue a s 83 appeal to the Supreme Court, she would also have required an extension of time to seek leave to appeal. In the present case the plaintiff acted promptly, filing his summons seeking judicial review on 25 June 2024: one week after the Tribunal’s decision. If instead he had exercised his right to appeal pursuant to s 80, he could have done so at that stage without needing an extension of time.

87. The s 34(1)(c) power to refuse to conduct a judicial review is discretionary, and is to be exercised in the interests of justice. Questions of prejudice may therefore play a significant role. An example is Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416. The plaintiffs there had failed to pursue their internal appeal rights under s 80. Beech-Jones J reluctantly declined to exercise the s 34 power adversely to the plaintiffs because his Honour found an error which was so fundamental that it meant the proceedings had wholly miscarried, and where the delay that would be entailed in requiring the plaintiffs to pursue their appeal rights (assuming an extension of time would be granted) would be prejudicial in the circumstances of the case: at [64].

88. By contrast, here, the only prejudice that it appears the plaintiff would suffer if he were now required to pursue his s 80 rights to appeal to an Appeal Panel would be the need to obtain an extension of time. I will return to that issue below.

89. There is also a question about the plaintiff’s explanation for not pursuing his statutory right to appeal to the Appeal Panel. At the hearing of the amended summons, the plaintiff said from the Bar table, for the first time, that he had been unaware of his s 80 appeal rights: Tcpt, 3 December 2024, 29/17. That this was the plaintiff’s principal explanation emerged in the following circumstances.

90. It is not clear when the plaintiff first became aware of either his s 80 appeal rights, or the s 34(1)(c) issue. At the very latest, he must have been aware of both matters by early November 2024. The date of the signature on his amended summons was 11 November 2024; the date of filing was 19 November 2024. Under the heading “Grounds”, the plaintiff stated at [4] that he “respectfully submits that, notwithstanding Section 34 of the Civil and Administrative Tribunal Act 2013, each of the grounds outlined provides a valid and distinct basis for seeking direct appeal to the Supreme Court.” The plaintiff requested “that the Court consider these grounds as independently justifying judicial review, without the necessity of having exhausted appeal mechanisms at the Tribunal level.”

87. Bunnings formally asserted the s 34(1)(c) issue no later than 22 November 2024, when it filed its Statement of Issues in Dispute / Response to Amended Summons: at [7] and [8]. Bunnings may have raised the issue in correspondence earlier; the evidence did not address this issue (which Bunnings had not anticipated before the hearing of the amended summons).

88. Bunnings’ written submissions, also dated 22 November 2024, developed the argument by reference to a number of cases, including Makowska. Those submissions specifically referred to [4] of the amended summons and said,

“No reason is given as to why this decision [i.e., to pursue judicial review rather than a s 80 appeal] was justified other than the alleged validity of legal errors. No attempt has been made to address the forensic decision in circumstances where the avenue for internal review was more convenient and more amenable to the merits review which the Plaintiff plainly seeks.”

93. In the plaintiff’s submissions dated 23 November 2024, headed “Plaintiff’s Reply to Defendant’s Response to Submissions”, he responded to Bunnings’ contention “that the Plaintiff should have pursued an internal appeal within NCAT” as follows:

“Judicial review is the appropriate remedy as the issues raised, including misleading conduct and jurisdictional errors, fall within the purview of the Supreme Court. Internal appeals would not have adequately addressed these systemic issues”.

94. Two points should be made about that submission. First, there was no basis for the suggestion that an internal appeal would not have adequately addressed any legitimate ground of appeal; nor was there any basis for the submission that “misleading conduct” in general falls within this Court’s supervisory jurisdiction. Secondly, the plaintiff made no suggestion that he had been unaware of his rights of internal appeal at the time he filed his summons in this Court for judicial review.

95. Nevertheless, the plaintiff said from the Bar table at the hearing of the amended summons that he had not been aware of his internal appeal rights. That must be understood as a statement directed to the time at which the plaintiff filed his original summons; the plaintiff did not say when, after that time, he became aware of his s 80 right of appeal. Counsel for Bunnings did not accept this explanation. Counsel pointed to a statement in the Tribunal’s order which provided a link to “further information about your rights and obligations in relation to this order”, and offered to put on evidence that the hyperlink provided information about appeal rights. The plaintiff also said he had a second reason for seeking judicial review: that he had lost faith in the Tribunal: Tcpt, 3 December 2024, 30/18. The plaintiff declined the opportunity to lead evidence in relation to his explanation: Tcpt, 3 December 2024, 31/10-24.

96. The following conclusions should be drawn.

97. First, from a procedural perspective, a s 80 appeal would have been a much more appropriate vehicle for the plaintiff’s complaints about the merits of the Tribunal’s decision; permitting the plaintiff to proceed by way of judicial review tends to subvert the scheme of the CAT Act in relation to appeals; and the amount at issue is insufficient to justify the costs generally involved in Supreme Court litigation.

98. Secondly, this is not a case in which there is a clear indication that a substantial miscarriage of justice would occur if relief were not available in the supervisory jurisdiction. To the contrary, as has been seen, the plaintiff’s grounds of judicial review lack merit, and no issue of legal principle is engaged. It is true that the plaintiff would now need an extension of time to pursue a s 80 appeal to the Appeal Panel. But such an appeal could encompass (by leave) the plaintiff’s challenge to the Tribunal’s factual findings, and to the extent that his appeal had merit the fact that (on the plaintiff’s case) he had been unaware of his s 80 rights would be a reason for extending time.

99. Thirdly, to the extent that the plaintiff’s explanation for not pursuing his s 80 rights to appeal to an Appeal Panel is that he lost faith in the Tribunal, that is no reason not to exercise the discretion in s 34(1)(c) to refuse to conduct a judicial review. To the contrary, it suggests (at the least) that the plaintiff did not wish to pursue such rights to an internal appeal as he may have had.

100. Fourthly, to the extent that the plaintiff’s explanation is that he was unaware of his s 80 rights, there is no evidence to support the explanation, Bunnings clearly stated at the hearing that it would not accept it, and there is reason to doubt it.

101. The case is thus a strong one to exercise the s 34(1)(c) power to refuse to conduct a judicial review.

102. However, the plaintiff, as a self-represented litigant, may not have understood the significance for the exercise of the s 34(1)(c) discretion of providing an explanation by evidence. Moreover, even if the plaintiff had sought to serve an affidavit deposing to his explanation, it may well be that Bunnings would have sought to challenge that evidence by cross-examination, which would have required a further hearing. That would have been wholly disproportionate to the issues.

103. In the circumstances, given that the question is whether to exercise the Court’s supervisory jurisdiction at all, it would be preferable not to exercise the s 34(1)(c) power adversely to the plaintiff on the basis that there is no evidence of an explanation, if it is possible to do so.

104. Notwithstanding the lack of evidence, I will assume in the plaintiff’s favour that he was unaware of his s 80 right of appeal at the time he filed his summons. But that is as far as the plaintiff’s primary explanation goes. The time at which, and in what circumstances, the plaintiff first learned of his s 80 rights of appeal, and what if anything he then did, might have been relevant to the exercise of the discretion. But none of those matters formed part of the plaintiff’s explanation. The plaintiff discovered that he had appeal rights at some stage; he did not inform the Court when that was, or what he decided to do at that point. Given the plaintiff’s other reason for seeking judicial review (that he lost faith in the Tribunal), the inference to be drawn is that he chose not to change course. In light of the other discretionary factors referred to above, the plaintiff’s explanation is an insufficient reason to exercise the s 34(1)(c) discretion in favour of conducting a judicial review.

105. That being so, if I had not dismissed the amended summons on it is merits, I would have done so in exercise of the power in s 34(1)(c).

Costs

106. Costs should follow the event.

107. However, Bunnings indicated that, in the event that it succeeded, it would apply for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), on the ground that it would be disadvantaged by formal assessment because of the risk of incurring further costs with no prospect of commercial recovery against an unrepresented litigant in person. It should be permitted to pursue that application, and directions should be made for it to do so.

Orders

108. For the reasons given above, the amended summons should be dismissed on its merits.

109. The orders of the Court are:

1. Dismiss the amended summons.

2. Order that the plaintiff pay the costs of the first defendant in this Court.

3. Direct the first defendant to file and serve by 5 pm on 20 March 2025 any evidence on which it wishes to rely in seeking an order that in respect of the costs referred to in order 2 above, it be entitled to a specified gross sum instead of assessed costs, including any evidence quantifying those costs.

4. Direct the plaintiff to file and serve any evidence on which it wishes to rely in response to the evidence referred to in order 3 by 5 pm on 27 March 2025.

5. Direct the parties to exchange submissions not exceeding 3 pages in length on the question whether the first defendant should be entitled to a specified gross sum instead of assessed costs, and if so in what sum, by 5 pm on 3 April 2025.

6. The application referred to in order 3 above be determined on the papers.

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Decision last updated: 13 March 2025