· Ms Diane London v Academy of Safe Therapies Pty Ltd (Civil Dispute)

[2010] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

·MS DIANE LONDON V ACADEMY OF SAFE THERAPIES PTY LTD (Civil Dispute) [2010] ACAT 44

XD 10/340

Catchwords:             CIVIL DISPUTES – Damages– ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48

Legislation:               ACT Civil and Administrative Tribunal Act 2008

Tribunal:                  P.R Thompson, Member

Date of Orders:  19 July 2010
Date of Reasons for Decision:         2 August 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 370 of 2010

BETWEEN:

DIANE LONDON

Applicant

AND:

ACADEMY OF SAFE THERAPIES PTY LTD

Respondent

TRIBUNAL:  Mr P.R Thompson, Member

DATE:  19 July 2010

ORDER

1.Judgment for the Applicant in the sum of $2,952.50 and costs of $132.00 and pre judgment interest from 17/03/10 to 19/07/10 of $90.23 – Total of $3,174.73.

2.Respondent allowed 28 days to pay.

………………………………..
P.R Thompson

Member

REASONS FOR DECISION

1.On 1 April 2010. the above named applicant lodged a civil dispute application in the Tribunal alleging breach of contract and misrepresentation on the part of the then named respondents, Ms Patricia Dyne(1st respondent) and the Academy of Safe Therapies Pty Limited (AST) (2^nd respondent).

2.Ms London stated in that application that she had completed a substantial part of an Advanced Diploma of Naturopathy at the Canberra Institute of Technology (CIT), but had decided to transfer to the course run by the second named respondent, for reasons outlined hereunder. Eventually, she claimed she was forced to transfer to the Australian Institute of Applied Science (AIAS), where she completed her studies and gained her diploma.

3.In her application, Ms London, who resides at –[address removed]- sought damages in the sum of $10,000.00, made up as follows:

I.$1,750.00 being the cost of the AST units to be refunded;

II.$1,290.00 being the additional costs incurred in purchasing AIAS units;

III.$2,610.00 being the cost of additional traveling and accommodation incurred in completing the remainder of her Advanced Diploma of Naturopathy units at AIAS;

IV.$132.00 being a $115.00 tribunal lodgment fee and a $17.00 company search fee;

V.$4,218.00 being a partial claim for loss of income as a result of a 5 month delay in being able to complete her course.

4.According to Ms London’s application, which she later confirmed in evidence before the Tribunal, she had enrolled in the Advanced Diploma of Naturopathy via distance education at the Academy of Safe therapies Pty Limited (AST) on the basis that this course was more flexible learning than her previous course at the Canberra Institute of Technology and that it would allow her to complete the course at a faster pace. This fact was confirmed, according to the applicant, in her discussions with AST staff, also in e-mails with those staff, and in published information on the AST website.

5.Ms London’s application sets out in detail her difficulties in obtaining course material from AST and her inability to complete the course with that institute within the promised time frames. She also claimed that she was unable to obtain a promised refund of her course fees even after submitting the required refund application. At the date of hearing her application, this refund was still outstanding.

6.On 30 April 2010, a response was filed in the Tribunal in which Ms Patricia Dyne set out her objection to being named as a respondent to these proceedings.  This claim was subsequently accepted by the Tribunal’s Registrar at a Preliminary Conference held on 21 May 2010 when the matter was set down for hearing before me on 14 July 2010. Mr. Morris ordered that Ms Dyne be deleted as a respondent thereby making AST the sole respondent to these proceedings.

7.The Response filed on 30 April 2010 contained a full and detailed denial of liability on the part of AST of each and all of Ms London’s claims; however the respondent was prepared to offer as a good will gesture, a refund of the course fees for the three clinics that they conceded she hadn’t finished.

8.The respondent argued in detail that the claims made against it by the applicant were incorrect, in particular that she had enrolled with AIAS in Brisbane in September, well before she had requested a refund application from AST, thereby it could be inferred that the decision to enroll at two institutions at the same time was the applicant’s alone and not because of any actions of AST.

9.The respondent further claimed that the applicant enrolled in a lesser course giving her a lesser qualification than the original course thereby requiring less time and less study. Ms London was able to demonstrate to me at the subsequent hearing by producing her Advanced Diploma of Naturopathy obtained from AIAS and her course enrollment documentation that the respondent’ assertions in this regard, were plainly incorrect.

10.At the hearing on 15 July 2010. Ms London appeared in person with the respondent being represented by way of a telephone hookup by its director,  Ms Patricia Dyne, MS Kim McClure, who is the Dean of the Academy and by Ms Jane Dyne, its Principal.

11.After hearing evidence from the applicant and the respondent’s representatives, I found that the respondent had breached its contract with the applicant in failing to produce and/or deliver course material to her in accordance with the terms of that contract, and that as a result of that breach, she had suffered damages.

12.It was really not in dispute that the applicant was unable to complete her course with AST and in fact correspondence with the respondents employees, produced at the hearing, confirmed that the suggestion that Ms London enroll in a similar course at a comparable institution was discussed with Ms McClure on 7 October 2009 and prior to the applicant’s transfer.

13.In assessing those damages, I took into account the evidence produced by both parties and the testimony given by them. I accepted the arguments set out by the respondent in its response and the evidence given by its representatives in respect of certain limbs of the damages claimed by the applicant.

14.I also noted that there was a lack of supporting material supplied by the applicant that would justify the award of damages to her for loss of income or traveling costs and expenses associated with completing her course with AIAS.

15.As the request for the reasons for my decision was restricted to my decision to award Ms London damages which included the amount of the difference in cost between the respondent’s course fees and the fees charged by AIAS, I have not set out in any detail the arguments or the evidence produced or given by either party in respect of the other aspects of Ms London’s claims, and which, in the main were unsuccessful.

16.I did not accept that the applicant was in fact in any way remiss in enrolling with AIAS when she did. I also accepted that she enrolled in, and was accepted for the Advanced Diploma of Naturopathy course with AIAS on 21 October 2009 and not in September as claimed by the respondent. That was the same date that Ms London requested a refund application form from Ms Jane Dyne, and which was subsequently e-mailed to her the next day.

17.Apart from one subject, which was the result of an agreement between the two parties, I also did not accept that Ms London was in fact enrolled at two institutions at the same time, as claimed by the respondent. Due to the respondent’s failure to provide promised course material in a timely manner, she was in my view fully justified in terminating her arrangements with the respondent and seeking a refund of course fees already paid by her in respect of the five uncompleted units, and as outlined in her evidence. I also formed the view that on the evidence, Ms London was also justified in changing institutions.

18.The damages suffered by the applicant as a direct result of the respondents breach of contract, included in my view, the addition cost to her of enrolling in an identical course at a comparable Institution in respect of similar or comparable units.  Hence those costs were included in the amount of damages I awarded.

19.I ordered judgment for the applicant in the sum of $2,952.50 plus costs of $132.00, with interest payable from 17 March 2010 as calculated by the registry staff. I also allowed the respondent 28 days to pay the total amount awarded.

20.In arriving at the total figure of $2,952.50 for damages. I included an allowance of $1,290.00 as being the difference in fees between the two institutions. The balance of that figure was the requested refund of course fees at $350.00 per subject less 5%.

………………………………..
P.R Thompson,

Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      XD 10/370

APPLICANT:  DIANE LONDON
RESPONDENT:  ACADEMY OF SAFE THERAPIES PTY LTD

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          SELF

RESPONDENT:      PATRICIA DYNE

TRIBUNAL MEMBER/S:        P.R Thompson

DATE/S OF HEARING:          19 July 2010              PLACE: CANBERRA

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: