Patel v CTTT and Malaysian Airllines Australia
[2010] NSWDC 38
•26 March 2010
CITATION: Patel v CTTT & Malaysian Airllines Australia [2010] NSWDC 38 HEARING DATE(S): 12 February, 12 and 15 March 2010
JUDGMENT DATE:
26 March 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Mr Patel’s appeal is allowed;
2. The decision of Consumer, Trader and Tenancy Tribunal by Tribunal Member PM Briggs dated 5 June 2009 is set aside, save for the finding that the amount of luggage Malaysian Airlines declined to check in and load and which was therefore discarded at Mumbai airport on 27 January 2009 was 20kgs;
3. I appoint a directions hearing before me at 9.30 am on Thursday 1 April 2010 for making orders and directions concerning the resumption of the hearing to deal with the question of damages;
4. Malaysian Airlines are to pay Mr Patel’s agreed or assessed costs concerning the determination of the split issues;
5. Malaysian Airlines is to have a certificate under the Suitor’s Fund Act 1954, if entitled;
6. Liberty to apply on 7 days notice, if further orders are required.CATCHWORDS: ADMINISTRATIVE LAW – judicial review – limited statutory right of appeal to District Court from CTTT – s 67(1) of Consumer, Trader and Tenancy Tribunal Act 2001 – disinclination by CTTT to adjourn the proceedings – whether an adjournment was warranted – whether declining an adjournment was procedurally unfair so as to amount to a question with respect to a matter of law – claims by appellant concerning alleged unfairness and apprehended bias – duty of Tribunal to assist litigant in person and to ensure that all relevant material is disclosed to Tribunal – circumstances where hearing by Court is justified rather than remittal to CTTT – s 56 of the Civil Procedure Act 2005 – s 67(3)(a) of the Consumer, Trader and Tenancy Tribunal Act 2001 LEGISLATION CITED: Civil Procedure Act 2005
Courts and Crimes Legislation Amendment Act 2008
Consumer, Trader and Tenancy Tribunal Act 2001
Suitor’s Fund Act 1954CASES CITED: Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139
Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150
Baltic Shipping Company Ltd v Dillon [1993] HCA 4; (1993) 176 CLR 344
Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38
Caladine v NSW HCCC [2007] NSWCA 362
Dayeian v Davidson [2010] NSWCA 42
Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102
Douglas v NSW Land and Housing Corporation [2008] NSWCA 315
Falco v James McEwan & Co. Pty Ltd (1977) VR 447
Grygiel v Baine & Ors [2005] NSWCA 218
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 92
Jarvis v Swan Tours Ltd [1972] EWCA Civ 8; (1973) QB 233
Johnson v Australian Casualty Company Limited (1992) Anz Ins Cases 61-109
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
Leitch & Ors v Reynolds [2005] NSWCA 259
Monarch Steamship Co. Ltd v A.B. Karlshamms Oljefabriker [1948] UKHL1; (1949) AC 196
Obietta v Consumer Trader & Tenancy Tribunal [2009] NSWCA 220
Rajski v Scitec Corporation Pty Ltd (NSW Court of Appeal, unreported, 16 July 1986)
Walmsley v Cosentino [2001] NSWCA 403
Watts v Morrow [1991] EWCA Civ 9; (1991) 1 WLR 1421
Young v Insight Vocations Pty Limited [2009] NSWDC 122PARTIES: Kalpesh Patel (Plaintiff)
Consumer, Trader and Tenancy Tribunal (First defendant)
Malaysian Airlines Australia (Second defendant)FILE NUMBER(S): 3073 of 2008 COUNSEL: Plaintiff in person
(First defendant CTTT entered a submitting appearance)
Mr AR Davis (Second defendant)SOLICITORS: Plaintiff in person
(First defendant CTTT entered a submitting appearance)
Lander & Rogers (Second defendant)
JUDGMENT
Table of Contents
Nature of the case [1] Facts [2] – [5] Issues to be determined [6] – [7] Split issues [8] Summary of findings [9] – [10] Procedural history and relevant background [11] – [33] The filed claim
[12] – [15] Ex parte Tribunal hearing on 9 April 2009
[16] – [19] Mr Patel’s application to the Tribunal for a rehearing
[20] – [24] Hearing complained of before Tribunal on 5 June 2009
[25] – [26] Mr Patel’s application for a rehearing after the hearing on 5 June 2009
[27] Tribunal’s refusal of a rehearing
[28] – [32] Filing of summons for appeal
[33] Review of matters arising in Tribunal hearing on 5 June 2009 [34] – [69] Plaintiff’s summons [70] – [72] Grounds of appeal raised by Mr Patel [73] – [74] Evidence on appeal [75] Legislation and jurisdiction [76] – [84] Relevant authorities [85] – [92] Issue 1 - The limitation question [93] – [95] Issue 2 - Claimed failure to assess damages for inconvenience [96] – [119] Issue 3 - Claimed procedural unfairness in declining adjournment [120] – [122] Power to adjourn
[123] Basis of decision not to adjourn
[124] – [133] Procedural unfairness on a matter of law – non-adjournment
[134] – [141] Conclusion on procedural unfairness regarding non-adjournment
[142] – [147] Issue 4 - Claimed apprehension of unfairness and bias [148] – [170] Issue 5 - Remittal or rehearing in District Court [171] – [180] Disposition [181] Orders [182]
Nature of case
1. Mr Patel’s summons is brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. The plaintiff, who was self-represented, seeks to set aside a decision of the Tribunal made in its general division on 5 June 2009. The matter at issue concerned a customer relations dispute with Malaysian Airlines over compensation for luggage that was abandoned at the airport at Mumbai, in India.
Facts
2. On 27 January 2009, Mr Patel’s children, then aged 12 years and 14 years, were booked on pre-paid tickets to travel unaccompanied on a Malaysian Airlines flight from Mumbai to return home to Sydney. The agreed terms of the baggage allowance provided for the carriage of 30kg of luggage for each of Mr Patel’s children.
3. The matter at issue arose at the Malaysian Airlines check-in counter at Mumbai when airline ground staff erroneously interpreted the ticket conditions, under which the carriage of luggage was agreed. As a consequence, the plaintiff’s children, who were unaccompanied, felt compelled to abandon a claimed 20kg of baggage at the airport before boarding the aircraft. Subsequently, in Sydney, when Mr Patel pursued the matter of the abandoned luggage, the airline ultimately admitted fault.
4. In the Tribunal, Malaysian Airlines was ordered to pay Mr Patel compensation in the sum of $918 for 20kg of luggage jettisoned at the airport following the airline’s failure to check-in and load the agreed amount of the baggage allowance.
5. Mr Patel’s claim was for the value of the lost goods in the amount of $3250 and for inconvenience. Mr Patel alleged the decision of the Tribunal ordering Malaysian Airlines to pay Mr Patel the sum of $918 was, amongst other things, vitiated by error in respect of matters of law. He sought a rehearing of his claim.
Issues to be determined on appeal
6. The matters for determination in this appeal are limited by the terms of the enabling statute. They are first, whether any questions arise with respect to matters of law, and if so, secondly, the nature and extent of any relief that should be granted: s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 [“CTTT Act”].
7. Mr Patel claimed that his case was dealt with unfairly in the Tribunal. For the purposes of determining this appeal, the 8 grounds of appeal raised in the summons filed by Mr Patel can be conveniently summarised into three main issues. A fourth issue arose as to whether Mr Patel’s summons was filed within the required time. This raised a question as to the competency of his appeal. A fifth issue concerned the manner in which the appeal should proceed. For convenience, I have listed these resultant five issues to be determined as follows:
Issue 1 : Was the appeal filed out of time, and if so, whether the circumstances warrant that an extension of time for filing the appeal should be granted;
Issue 2 : Whether there was a failure on the part of the Tribunal to assess damages claimed for distress and inconvenience arising out of the refusal by Malaysian Airlines to carry the full quantity of an agreed 30kgs of luggage per passenger, and if so, did this amount to an error of law;
Issue 3 : Whether Mr Patel was denied procedural fairness in the course of the hearing before the Tribunal, and if so, did this amount to an error of law;
Issue 4 : Whether the hearing in the Tribunal was conducted in an unfair manner, and if so, would a reasonable observer have concluded that there had been an apprehension of bias against Mr Patel, and if so, what follows from this;
Issue 5 : In the event that the appeal is upheld, should the proceedings be remitted to the Tribunal for a rehearing, or should this Court make orders that should have been made by the Tribunal, and if so, on what basis.
Split issues
8. During the course of the hearing, it was determined that these preliminary questions would be decided first, separate from any possible remittal or assessment of damages.
Summary of findings
9. I have decided that Mr Patel is entitled to the grant of an extension of time in order to regularise his appeal, which was filed 11 days outside of the prescribed time for the filing of such an appeal. I have found that Mr Patel has established that there were questions with respect to matters of law that arose in respect of the proceedings before the Tribunal within the meaning of s 67(1) of the CTTT Act. In this regard, I have found the following. First, there was a failure on the part of the Tribunal to consider or award damages for distress and inconvenience arising from the breach of agreement by Malaysian Airlines. Secondly, I have found this case to be in that special category of cases where a denial of procedural fairness by the CTTT in declining an adjournment of the proceedings for Mr Patel to obtain evidence, amounted to a decision on a question with respect to a matter of law.
10. I have concluded that the third category of matters raised by Mr Patel, which related to the manner in which the Tribunal conducted the proceedings, and which Mr Patel claimed gave him the impression that the Tribunal had acted unfairly and was biased against him, did not raise questions remediable in this Court with respect to matters of law within the meaning of s 67(1) of the CTTT Act. On the remediable questions, I have decided there should be no remittal back to the Tribunal in the circumstances and that damages should be assessed in this Court : s 67(3)(a) of the CTTT Act.
Procedural history and relevant background
11. Before addressing the issues for determination, and before reviewing the course of events and the decision in the Tribunal, it is important to set out the procedural history of the matter to achieve an understanding of Mr Patel’s complaints concerning the hearing of his claim in the CTTT.
The filed claim
12. The proceedings in the Tribunal generated 5 related CTTT files. These were identified as being Gen 09/13614, Gen 09/18394, Gen 09 /21183, Gen 09/27508 and Gen 09/30826. Initially, it was not entirely clear to the parties or from the CTTT files as to why 5 files had been generated by the Tribunal. However, it was agreed between the parties that the relevant proceedings in the Tribunal that were the subject of the appeal were numbered Gen 09 /21183.
13. Mr Patel was self-represented both in the Tribunal and in this court and claimed impecuniosity. He declined to avail himself of the opportunity to obtain legal assistance. He was able to communicate sufficiently in English in order to make himself understood.
14. The Tribunal file contained Mr Patel’s original application to the CTTT which was dated and lodged on 19 March 2009. Mr Patel stated that he had lodged the application on-line. The narrative statement of Mr Patel’s claim, which he stated to be verified, read in part as follows:
“Discarding of cloths, dresses, sarees, which were traditional dress materials which is not available here with T-Shirts, Jeans, Chudidar, Punjabi salwar, gifts dresses offered by friends and relatives. My kids were never aware on or dreamed on the discarding of goods scenes at airport, so unable to produce any receipt of the purchase, as it was never preserved for any record purposes.”
15. The manner and form in which Mr Patel had filed his claim was not an issue. It was a statutory requirement that the claim be determined with as little formality as the circumstances of the case permit, according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal form : s 28(3) of the CTTT Act.
Ex parte Tribunal hearing on 9 April 2009
16. The proceedings in the Tribunal were originally fixed for hearing on 9 April 2009. On that occasion Mr Patel did not appear. Apparently he had not received notification of the hearing date.
17. In Mr Patel’s absence, on 9 April 2009, an ex parte hearing took place in the Tribunal before Tribunal Member Kinsey. Malaysian Airlines was represented by Ms Jan Everett, a corporate communications officer employed by that airline. In Mr Patel’s absence, orders were made in his favour in the following terms:
“Reasons:
$600.00 COMPENSATION FOR EXCESS BAGGAGE AND INCONVENIENCE EX DEPARTURE BOMBAY ON 27/1/2009”
18. The Tribunal forwarded a copy of the above orders to Mr Patel on the date they were made. Once he became aware of these ex parte orders, Mr Patel was dissatisfied with the determination made by the Tribunal.
19. It was clear from these events that the hearing on 9 April 2009 was not a hearing on the merits of the claim brought by Mr Patel. This fact takes on some significance in view of later occurring events concerning issues relating to the non-adjournment of the proceedings on 5 June 2009. It also relates to issues raised by Mr Patel concerning procedural fairness.
Mr Patel’s application to the Tribunal for a rehearing of his claim
20. Following an application by Mr Patel for a rehearing pursuant to s 68 of the CTTT Act the Tribunal set aside the orders it made on 9 April 2009. In doing so, the CTTT granted Mr Patel a rehearing on the following grounds:
“The Chairperson’s delegate directs that the matter number GEN 09/13614 be reheard as the Chairperson’s delegate is satisfied that the applicant may have suffered a substantial injustice because evidence that is now available that was not reasonably available at the time of the hearing.”
21. From the context, it appears that the reference to non-availability of evidence at the ex parte hearing was a reference to the absence of Mr Patel from the hearing.
22. On 6 May 2009, Ms Jan Everett who appeared for Malaysian Airlines at the ex parte Tribunal hearing on 9 April 2009, wrote to the registrar of the Tribunal in the following terms:
“The decision made by Mr Kinsey on that date was considered both fair and just. As advised by Mr Kinsey at the time: ‘there is no evidence to support the claim’. Mr Patel has advised he was not able to produce copies of the baggage receipts nor any receipts for goods purchased to substantiate the amount claimed.”
23. Given that Mr Patel had not appeared at the hearing on 9 April, it was open for the Tribunal to conclude on that occasion that there was no evidence to support the claim.
24. It is not clear whether Mr Patel received a copy of the 6 May 2009 letter sent to the Tribunal by Malaysian Airlines. However, nothing turns on this.
Hearing complained of before the Tribunal on 5 June 2009
25. On 5 June 2009, a rehearing took place in the Tribunal before Tribunal Member PM Briggs. At that hearing Mr Patel was self-represented and Malaysian Airlines was again represented by its employee, Ms Everett. At the conclusion of that hearing an order was made awarding Mr Patel the sum of $918 in compensation. I will return to a review of the events of that hearing.
26. The course of that hearing, and the result of that hearing, caused Mr Patel to be a party dissatisfied within the meaning of s 67(1) of the CTTT Act. Six days after that hearing Mr Patel applied to the CTTT for a rehearing of his claim.
Mr Patel’s application to the Tribunal for a rehearing after the hearing on 5 June 2009
27. On 11 June 2009, Mr Patel completed, by his own hand, an application for rehearing. The grounds for the application for rehearing are reproduced as follows, replicating in emboldened text, the headings in the CTTT application form :
“ (i) Decision not fair and equitable
· Decision made by Tribunal Member was unfair & discriminating Judgement.
· Opponent gave wrong & misleading and manipulated information toCourtTribunal.(ii) Decision of the CTTT against the weight of the evidence.
What evidence did you give at the hearing? What documents did you show the CTTT?
I am submitting letter from fair trading dept. where it clearly shows opponent is not trustworthy and submitting statutory declaration as well sign by my kid who went throi (sic for through) all pain & agony & trauma & tensing during the Journey.
(ii) Decision of the CTTT against the weight of the evidence (continued)What evidence did the other party give? What documents did the other party show the CTTT?
They gave verbal information, not sure recorded or not. I don’t know but it is their own record they want to manipulate them it is very easy for her
· We should be compensate for loss of goods.What decision do you think the CTTT should have made, given the evidence / documents presented at the original hearing?
· We should be compensate forpaingpaying extra money per ticket which was bought with purpose & it was not served by them.
· Breach of trust & faith by them need to compensate my Kid’s pain/agony/tension/trauma as well for none of their faults.
(iii) Evidence now available that was not reasonably available at the time of the hearing?
What evidence / documents do you now seek to produce to the CTTT?
If you are relying on these documents you must attach copies to this application form.
I am new to all this tricks of opponent in Tribunal hence unable to produce evidence and till today I never heard
anyanyone’s has received gift by their friends & relatives with proof of purchase so opponent is taking in (sic) due advantage of such fact and taking me on side.23/01/2009 I am not professional so it is very hard for us to keep all professional evidence which were actually no one in history has received ex – proof of purchase from friends & relative for gifts offered to them.”When did you first become aware of this evidence?
State why this evidence / documents were not available at the time of the hearing.
Tribunal’s refusal of application for a rehearing of the hearing of 5 June 2009
28. It appears that on 12 June 2009 and on 17 June 2009, the Tribunal undertook a “papers review” of Mr Patel’s letter dated 11 June 2009. The file notes of that review set out a chronology of Mr Patel’s claim as it was processed by the Tribunal. It is relevant to set out the noted chronology in full:
“9/4/09 CVSP 09/13614
N/A
R to pay $600 to A
20/4/09 CVSP 09/18394Sec 68
5/5/09 Granted
5/6/09 CVSP 09/21183Rehearing
R to pay 918.00
11/6/09 CVS 09/275082nd rehearing application”
29. A determination was then made on the papers, which stated that the application was “not granted” because it was “misconceived”. These were the choices of the available options on the internal CTTT “Form A”, which had to be completed for the assessment of Mr Patel’s application. This required that appropriate option boxes be ticked as part of the assessment process.
30. The CTTT reviewer then set out a file note of his reasons for not granting the application:
“The Tribunal has no power to entertain this further application for rehearing, see section 68(10), Consumer, Trader (and Tenancy Tribunal Act 2001.
On 9/4/09 the Tribunal determined matter number 09/13614. The applicant did not attend the hearing. The matter was determined in his absence. An order was made in favour of the applicant.
On 20/4/09 the applicant filed in the Tribunal a rehearing application, matter number 09/18394. The rehearing application was granted on 5 May for the reasons stated therein.
On 5/6/09 the Tribunal reheard the matter, matter number 09/21183. Both parties appeared at the rehearing and put their cases. A fresh order was made in favour of the applicant.
The applicant submits that he has fresh evidence to produce at a hearing which was not available to him previously. The applicant seeks to invoke the provision made in section 68(9A) of the Act.
However, there cannot be a further rehearing because of the bar set out in section 68(10) of the Act. It states that there may be only one rehearing in anyone proceeding.
The orders made by the Tribunal on 5 June must stand for the above reasons”
31. On 7 July 2009, the delegate of the registrar of the Tribunal wrote to Mr Patel informing him that on 17 June 2009 his application for rehearing in matter of Gen 09/13614 was not granted. The delegate’s reasons stated:
“ Written Reasons :
The rehearing applicant lodged in the Tribunal a further application for rehearing on 11 June 2009, matter number 09/27708. The application was not granted on 17 June 2009 for the reasons stated therein. The Tribunal has no power to entertain this application because of what is contained in section 68(10) of the Consumer, Trader and Tenancy Tribunal Act 2001.
The Tribunal has the power to grant one rehearing. This has been already done on 5 May 2009, matter number 09/18344. The rehearing was held on 5 June 2009, matter number 09/211183.
The Tribunal notes that the (sic) if the cosumer (sic) is dissatisfied with the outcome, advice should be sought to pursue the matter in another forum.APPLICATION FOR A REHEARING NOT GRANTED”It is not possible for the consumer to have another rehearing in the Tribunal.
32. The question of whether or not the hearing conducted in the Tribunal on 5 June 2009 was, in truth, a rehearing because the earlier ex parte hearing on 9 April 2009 was not a hearing on the merits, was not a matter that was argued in the appeal.
Filing of summons in District Court appealing the 5 June 2009 Tribunal decision
33. On either 13 or 14 July 2009, it is not clear from the document as to which of these dates is correct, Mr Patel filed his own summons in this court. By that summons, he seeks to have the decision of the Tribunal set aside. At all interlocutory stages in this court, including at call-overs and notices of motion, Mr Patel represented himself.
Review of matters arising during Tribunal hearing on 5 June 2009
34. Before examining the issues raised in Mr Patel’s summons, in view of the nature of the relief claimed, it is relevant to set out an overview of the course of the hearing in the Tribunal, and to extract the detail of some material portions of the transcript to achieve the context of what took place at the Tribunal hearing.
35. The official transcript of the proceedings was annotated with numerous “not transcribable” entries. At the conclusion of the first day of hearing the parties were requested to listen to the sound recording of the proceedings that Mr Patel had obtained from the Tribunal in an endeavour to reach agreement on filling in the missing text of the un-transcribed portions of the transcript. In citing extracts from the transcript, whenever I have quoted from relevant portions of it, to the extent that this has been augmented by that process. I have added emboldened text to indicate Mr Patel’s version of the missing text and I have also added emboldened italicised text where appropriate to indicate the interpretation of the sound recording by the Malaysian Airlines representatives, as set out in Exhibits “B” and “C”.
36. At the commencement of the hearing, the Tribunal Member commenced his consideration of Mr Patel’s’ claim by drawing attention to the view that Mr Patel had no evidence to support the claim made for a loss of $3250. Mr Patel responded by raising a preliminary matter, that is, he took issue with Ms Everett’s statement as to her employer’s contention as to how the loss should be assessed. Malaysian Airlines contended the claim should be for the loss of two lots of 5kgs for lost luggage, totalling 10kgs rather than two lots of 10kgs or the 20kgs claimed by Mr Patel. Ultimately, at a later stage of the hearing, the Tribunal Member decided that particular issue in favour of Mr Patel and found that the weight of the discarded luggage was 20kgs.
37. Mr Patel then raised a question as to why, in the circumstances, he should be required to produce evidence of proof of purchase of the discarded property, which he identified as received gifts. The Tribunal Member responded to Mr Patel’s question by correctly drawing attention to the need for proof of the loss by establishing the reasonable value of the lost goods on the balance of probabilities, according to the civil standard of proof. The Tribunal Member then outlined examples of methods of proof, such as receipts, statutory declarations or affidavits to enable the Tribunal to determine whether the quantum of the claim had a reasonable basis in fact.
38. In responding to the invitation to proffer proof of the value of the lost goods, Mr Patel stated that the goods comprised a collection of gifts of expensive items. This was Mr Patel’s explanation to the Tribunal as to why he did not have evidence at hand for the proof of purchase.
39. The Member then enquired as to why Mr Patel’s children did not send the materials by post instead of discarding them.
40. Mr Patel then explained that, at the time the events in question had occurred, his children were totally frustrated by the circumstances. He explained that at the airport they were being escorted and they were in a queue. From the context, I infer this was an airline check-in queue. He explained that, in the circumstances, they did not know what was being discarded and what was not.
41. The Tribunal Member then asked Mr Patel what evidence he could produce of what had been discarded. Mr Patel responded that he could give proof of purchase or a statutory declaration. It was apparent that he would need to obtain this evidence from his relatives in India because he did not have this available at the time. When the Tribunal Member asked Mr Patel why he had not done so beforehand, Mr Patel explained that he did not know what he was required “to discuss” at the hearing.
42. At that point in the proceedings before the Tribunal, it became clear, by Mr Patel’s statement, that he would need to obtain the evidence to which reference was made, that the prospect of an adjournment had to be considered as Mr Patel stated “I can just give you proof of purchase or statutory declaration.” When the Tribunal Member enquired of Mr Patel as to why this had not been done beforehand, he made reference to the earlier ex parte hearing in the Tribunal.
43. At this point the following interchange then took place:
“MEMBER: Right. Now I think this matter came before the Tribunal on the last occasion on the - when - -
EVERETT: The beginning of –
PATEL: And if you don’t –
MEMBER: April was it?
PATEL: If you don’t mind, I would like to highlight on what is ...”EVERETT: I have it here.
44. At this point, mention of the previous hearing was introduced whilst Mr Patel was apparently attempting to deal with an important issue concerning the basis of his claim. Mr Patel proceeded to outline his belief that he had paid Malaysian Airlines an extra $600 per ticket to enable his children to each carry an extra 10kgs of baggage. The relevance of the previous ex parte hearing was not apparent in the context of a hearing de novo.
45. At that point the Tribunal Member stated:
“MEMBER: As I understand there’s been an offer from Malaysian Airlines to compensate you for that.”
46. It is not apparent from the record of the proceedings before the Tribunal as to from where the Tribunal Member derived his understanding that an offer had been made. This may have arisen either from examining the CTTT file of the previous ex parte hearing, or a reference to the earlier result of that ex parte hearing, or from some ex cathedra statement.
47. In any event, Mr Patel responded by stating that the compensation that had been offered took no account of the luggage that had been lost and took no account of some 15 hours of suffering by each of his two children who were unaccompanied on the subsequent flight home.
48. The Member then enquired as to why Mr Patel’s children did not make a mobile phone call to relatives (presumably to relatives in Mumbai) for assistance. Mr Patel explained that the mobile telephone SIM cards he had bought for them had no coverage at the airport.
49. At this point Ms Everett joined the interchange and stated that at Mumbai airport Malaysian Airlines had facilities for passengers with excess baggage to take the excess back outside to relatives for posting. She further stated that it was possible to leave the excess with Malaysian Airlines staff to notify relatives to come and collect such left goods. There was no evidence put forward to suggest that such facilities had in fact been made available to Mr Patel’s children on this particular occasion. In response Mr Patel explained that at Mumbai airport, security was so tight, that only passengers and not relatives could go past the first gate at the airport, so that it was not possible to have followed Ms Everett’s suggested course.
50. At this point Ms Everett raised a factual contention that the allowance at Mumbai was 25kg per passenger plus 7kg hand luggage allowance.
51. The record then shows that at that time Mr Patel was in the course of explaining “I’m not a legal man” and was in the course of revisiting the issue of why he did not have evidence of proof of purchase of the goods when he was interrupted by the Tribunal Member who again raised the matter of the previous and apparently irrelevant consideration of the earlier ex parte hearing.
52. In this regard the following interchange took place:
“MEMBER: All right. When was the last time that this matter came before the Tribunal?
EVERETT: 9 April.
EVERETT: I have the cross-claim.”MEMBER: Right.
53. The reference to the cross-claim appears in the transcript. On behalf of Malaysian Airlines it was contended that the reference to the cross-claim was an erroneous transcription and that the wording at that point of the recording could not be made out. The recording disc of those proceedings was Exhibit “D” in this appeal. In my view, having heard the recording, I consider that it refers to the mention of a cross-claim as stated in the transcript. However, apart from introducing an element of procedural confusion, nothing turns on this as Mr Patel has not claimed to have been confused by an extraneous reference to a cross-claim.
54. The interchange then continued:
“MEMBER: All right. I understand that a rehearing was granted because Mr Patel was unable to attend or didn’t attend on the previous occasion. So Mr Patel, you’ve had approximately 2 months, plus the previous notice to provide some evidence to support the claim that you’re making.
PATEL: But I am
notnever aware that ..(not transcribable).. any proof, or a proof of purchase, because whatever the ..(not transcribable of produce of proof )..- I give any goods to or anything, I give to my relatives. They did not – they cannot produce – suppose I give them a good Parker pen will it be possible for you to produce the proof of purchase for Parker pen? I’m just giving a simple example.MEMBER: Well a simple example is fine, but a) I don’t know what material was discarded; b) I don’t know the value of that material --
PATEL: It was
thingsjeans ,jewellerychudidhar , everything is costing from $55 to $75 to $125 in Australian currency; in India it is from591500 Rupee to2,4002500 Rupees.MEMBER: Sir, did you purchase the material?
MEMBER: Right. I’m sorry. The proposition, Mr Patel, is that the Tribunal is not bound by the Rules of Evidence, consequently hearsay evidence, to some extent, might be allowable, but to simply come before the Tribunal and tell me that your relatives purchased certain things, without any corroborative evidence, is not very good evidence for me to make an order in your favour. There is nothing before this Tribunal that can support me making an order against Malaysian Airlines for $3,250 because there is simply no evidence of that.”PATEL: No, they give it – they given the gift, I cannot afford to purchase that gift, or ..(not transcribable such ).. gifts. My friend and relatives gave them the gifts.
55. At this point Mr Patel made it clear that he did not understand what was allowed as proof:
“PATEL: That’s terrible. I don’t know which ..(not transcribable what ).. my son and daughter discarded and which they have brought
into..(not transcribable it over ).. We don’t know what they allow for in the proof.MEMBER: Yes, sorry. Neither do I, Mr Patel and that’s exactly what the problem is. I don’t know and you haven’t provided me with the information that I need to make a decision.
PATEL: Then what is the best option to support you, you need proof of purchase.”
56. At this point it was clearly apparent that Mr Patel was in need of an adjournment to obtain the evidence required to prove his loss and was asking for guidance as to how to proceed. The Tribunal Member clearly recognised this, as is apparent from what then followed:
“MEMBER: Well this matter has already been before the Tribunal, and it’s come back to the Tribunal. It’s notwi thstanding (sic) what you say, it’s a relatively small claim and the Tribunal simply doesn’t have the inclination to adjourn and first cause further costs to both parties, to come back on a basis that you may or may not provide me with proof . Let me just go back to --
PATEL: The last meeting I would be able to attend because I was out of town.
[Emphasis added]MEMBER: All right. Okay.”
57. At this point Mr Patel took issue with a statement made by Ms Everett concerning whether the discarded goods weighed only 10kgs in total rather than a total of 20kg as was claimed by Mr Patel. The following is then recorded:
PATEL: She knows that I“MEMBER: Yes, right.
amhave not ..(not transcribable preserved ).. baggage, so that is why she is giving incorrect statement, that they allow 25 kilos, because she knows that Iamhave not ..(not transcribable preserved that baggage )..”
58. It appears from the context of submissions in the appeal that Mr Patel was trying to articulate something about the preservation of baggage tags. I cannot be certain about this. The text of what he was saying was lost by the interruption that followed:
“MEMBER: Look, I think that I accept that Ms Everett’s here. She has no particular interest in giving untruth to the Tribunal. She has no doubt certain instructions. In relation to the credit that you’ve previously offered, Ms Everett, how was that calculated?”
59. I consider that at that point, a person in Mr Patel’s position, being a person who was not versed in legal procedures, must have realised that the Tribunal would not grant an adjournment.
60. At this point it was apparent that whereas the Tribunal Member had earlier told Mr Patel that he needed evidence to corroborate his claimed loss, here he was telling Mr Patel that he was inclined to accept Ms Everett’s statement in preference to that of Mr Patel because she “has no particular interest in giving untruth to the Tribunal” in the matter. In coming to that view the Tribunal Member appears to have overlooked the fact that Ms Everett was there to advocate the interests of her employer on the basis of instructions that could not be tested when it was obvious that her employer had a particular interest in the matter.
61. At this point Ms Everett continued and took up the discussion on the matter of an offer apparently previously made to Mr Patel. Ms Everett responded to the Tribunal Member’s question as to how that previous offer was calculated. She explained that it was calculated at the rate of $45.90 per kilogram or $459 for 10kgs. She explained that an offer had also been made for $141 as “extra for inconvenience”. The transcript in this regard continued as follows:
“EVERETT: Okay. It’s calculated at – we calculated it on the rate per kilo of excess baggage that would’ve been charged out of India.
MEMBER: Yes.
EVERETT: Okay. And that works out to an equivalent Australian dollars of 459 for the 10 kilos.
EVERETT: We then offered $141 extra for inconvenience, which brought the balance up to $600.”MEMBER: Yes. Yes.
62. It is clear from the reasoning of the Tribunal Member that he then assessed damages in favour of Mr Patel on the limited basis of a loss of 20kgs of luggage as claimed by Mr Patel rather than the loss of 10kgs as was asserted by Ms Everett but on the basis suggested by Ms Everett, namely at the rate of $45.90 per kilogram in the amount of $918. In doing so, the Tribunal Member made no extra monetary allowance for inconvenience, as had been conceded earlier on behalf of Malaysian Airlines. His determination stated:
“MEMBER: Right. So on a basis of 10 kilos, we’re talking about 4.59 per kilo, if I accept Mr Patel’s evidence that in fact there was a 20 kilo difference, then by applying the same ratio we would be looking at a payment of $900. Giver (sic) that I think it’s probably in both parties’ interest that I bring this matter to a conclusion, rather than extend it further, on the basis of the potential that Mr Patel will be able to produce some evidence, and this would then cause both Mr Patel and yourself, or the Malaysian Airline system further costs and inconvenience to come back, I am going to make a determination that the Malaysian Airlines pay to Mr Patel the sum of $918 in response to his claim, and that will bring the matter to a conclusion.”
63. Ms Everett then expressed satisfaction at this method of resolution of the claim. When Mr Patel began to protest the result he was interrupted and was informed that he had rights he could pursue if he wished.
64. The recorded responses of the parties were:
PATEL: No, it’s - ..(not transcribable $900 ).. is unfair, because I paid them $600 for ticket, so $1,200 I paid --”“EVERETT: That’s fine.
65. The Tribunal Member then interrupted Mr Patel to inform him a decision had been made. A discussion then ensued in which it was clear that Mr Patel was dissatisfied with the decision of the Tribunal and wanted to pursue his rights to a review:
“MEMBER: Well I’ll say, Mr Patel, that is the determination of the Tribunal. You know what your rights are.
PATEL: So in that case, I give you a solution how to go to the higher authority.
MEMBER: Yes.
PATEL: Can you direct guide me how to go higher authority? And what evidence of proof you need for higher – what is needed by higher authority.
MEMBER: In the event that you believe I’ve made an error of law, Mr Patel, you can take the matter to the Supreme Court.
PATEL: OK Yes. Will you just give me where to go? And just give a note on what evidence
didto ..(not transcribable produce there )..?MEMBER: The Supreme Court will tell you what evidence you need.
PATEL: Yes.
MEMBER: The Supreme Court is in Queen’s Square.
PATEL: In ..(not transcribable Queens land )..?
MEMBER: In Queen’s Square.
PATEL: Queen’s Square.
MEMBER: Yes, if you go to the Registry there they’ll tell you what you need.
PATEL: Yeah.
MEMBER: I think your filing costs are about $1,500, Mr Patel.
PATEL: No worries. I am ready to spend $1,500, because my son and daughter were harassed for 15 hours. You are not considering my son and daughter’s harassment.
MEMBER: All right. Okay, thanks, Mr Patel. The orders that I make are that ---
PATEL: Can I get proof of order?
MEMBER: Yes, you will get that in due course.
MEMBER: Look, it’s not for the Tribunal to guide you, Mr Patel.”PATEL: And just I need guidance for how going --
66. At that point Mr Patel and the Tribunal Member engaged in further interchanges that related to Mr Patel’s desire for guidance on the procedure from that point. The transcript of those interchanges is as follows:
“ PATEL: Well who will guide me? Who will guide me?
MEMBER: Perhaps a legal representative.
PATEL: Where to ask for the ...(not transcribable help )..? Because I am new migrating in this country. So I need some guidance how to go about the higher authority.
MEMBER: Perhaps if you don’t have your own solicitor you might go to the Local Court and ask to see the Chamber Magistrate.
PATEL: Chamber of Magistrate.
MEMBER: Chamber Magistrate in the Local Court.
PATEL: In Parramatta?
MEMBER: Anywhere you like. In the alternative, you could go to a solicitor.
PATEL: No, I don’t want to go to any solicitor.
MEMBER: All right. That’s a matter for you, Mr Patel. Thanks, Ms Everett.
EVERETT: It’s a pleasure, thank you, sir.
ADJOURNED”MEMBER: Thank you.
67. It is a matter of some curiosity, that despite the officially certified transcript of the proceedings in the Tribunal obtained from Legal Transcripts Pty Ltd, which stated that the matter was adjourned as cited above, the recording obtained and transcribed by Mr Patel, and as annotated by the Malaysian Airlines representatives, shows that after the transcript indicated the matter had been adjourned, there were subsequent interchanges that passed between the Tribunal Member, Ms Everett and Mr Patel that had not been transcribed in the official transcript. Those agreed untranscribed interchanges taken from Exhibit “C” were as follows:
“ EVERETT: Can I collect paper of order.
MEMBER: Sorry paper is done all right.
MEMBER: If you like to wait outside then Mr Patel I will issue order now.
PATEL: Instead of issuing order if you guide me how to go ahead that will be better.
MEMBER: I am sorry?
PATEL: Instead of issuing order I have to --
MEMBER: I am sorry I have to issue an order that’s the way it is.
PATEL: OK, no worries.
MEMBER: Thank you.
PATEL: Bye.
MEMBER: If you want to collect your order
thenit willisavailable in few minutes at the desk.MEMBER: Thank you.”EVERETT: Yes.
68. Although additional interchanges that were omitted from the official transcript, as cited above, nothing turns on such omission.
69. It was the culmination of these events that led to Mr Patel filing his summons in this court.
Plaintiff’s summons
70. Mr Patel’s summons was framed as follows:
“ DETAILS OF APPEAL
2. This appeal is brought under section 67 of the Consumer, Trader and Tenancy Act 2001 .1. The plaintiff appeals from the whole of the decision below.
ORDERS SOUGHT
1. Appeal allowed.
2. Judgment/order or decision of the Tribunal below be set aside or quash(sic).
4. Plaintiff seeks orders for ancillary relief and compensation for general damages.”3. Court overturns the decision of the Tribunal below and grant the appeal claim of the plaintiff.
71. In this court the Tribunal entered a submitting appearance. Malaysian Airlines was represented by counsel and resisted the relief sought in the summons filed by Mr Patel.
72. It is relevant to set out the grounds of appeal relied upon by Mr Patel.
Grounds of appeal raised by Mr Patel
73. Mr Patel’s summons raised the following 8 grounds of appeal:
“ 1. The Tribunal Member erred in law and fact when (sic) made judgment/order for the First Defendant to pay the Plaintiff a compensation of $918.00 only. The amount of compensation was too low or unreasonable. The Plaintiff lost about $3,250.00 for baggage only.
2. The Tribunal Member erred in law and fact when evidence of the Plaintiff was ‘filtered’ and only relied on the evidence given by the First Defendant. The decision was against the weight of the evidence.
3. The Tribunal Member erred in law and fact when other claims of the Plaintiff were omitted and failed to take into consideration relevant facts and events.
4. The Tribunal Member erred in law and fact by failing to apply the prescribed legislations or law relevant to the Plaintiff’s claims.
5. The Tribunal Member erred in law and fact when the decision was affected by bias, and the hearing was conducted in an unfair and biased manner. The Tribunal Member was listening and giving more consideration to the First Defendant whose information was false and misleading and tried to ignore the Plaintiff most of the time, which constitutes apprehended bias.
6. The Tribunal Member erred in law and fact by failing to see that there was a contact that existed between the customer and the service provider and disregarded the fact that proper service was not provided or given to the Plaintiff and his children.
8. The Tribunal Member erred in law and fact by taking into account that ‘no evidence of distress or inconvenience, then there is no claim’. The Plaintiff does not have to prove the damage of distress and inconvenience, only the breach of negligence.”7. The Tribunal Member erred in law and fact by failing to take into account that children of the Plaintiff suffered harassment, distress and inconvenience at the hands and service of the First Defendant.
74. It is evident that the framing of the appeal grounds reflect the fact that Mr Patel has a non-legal background. Given that Mr Patel is unrepresented, I must nevertheless attempt to discern what emerges from these filed grounds to identify the issues raised within an appropriate legal framework. I have already outlined a condensed summary of these grounds when identifying the issues calling for determination in these proceedings. This appeal is not concerned with claimed factual errors. An appeal is maintainable on a question with respect to a matter of law : s 67(1) of the CTTT Act.
Evidence on appeal
75. Mr Patel gave short evidence in this Court in which he sought to explain the matters raised by his grounds of appeal. He also gave short evidence on the matters relevant to the grant of an extension of time for filing his appeal. As he was unrepresented and unversed in matters of legal procedure, his evidence was facilitated and focussed by questions from the Court : s 56(1) of the Civil Procedure Act 2005 [“CP Act”]. In addition to the transcript of the record of proceedings before the Tribunal and annotations to the untranscribable portions of that record, the sound recording of the proceedings was tendered: Exhibits “A”, “B”, “C” and “D”. Mr Patel’s application for a rehearing dated 7 June 2009 to the CTTT by which he sought a rehearing was also tendered : Exhibit “E”.
Legislation and jurisdiction
76. Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides to a party dissatisfied with the decision of the Tribunal an avenue of appeal to the District Court. Any such appeal can only be from a decision with respect to a matter of law: s 67(1) of the CTTT Act.
77. The reference to “a matter of law” in s 67 includes a reference to a matter relating to the jurisdiction of the Tribunal : s 67(8) of the CTTT Act.
78. An appeal grounded upon s 67 provides jurisdiction to either affirm the decision of the Tribunal on the question or make an order which, in the opinion of the Court, should have been made by the Tribunal : s 67(3)(a) of the CTTT Act. Alternatively, the Court may remit the matter to the Tribunal for a rehearing : s 67(3)(b) of the CTTT Act.
79. At a rehearing, either fresh or additional evidence may be given : s 67(7) of the CTTT Act.
80. Hearings before the Tribunal are not bound by the rules of evidence and the Tribunal is able to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness : s 28(2) of the CTTT Act.
81. The Tribunal is required to act with as little formality as the circumstances of the case permit according to equity, good conscience and substantial merits of the case without regard to technicalities or legal form : s 28(3) of the CTTT Act.
82. The Tribunal is obliged to act as expeditiously as is practicable and had the power to adjourn the proceedings if required : s 28(5)(a) and (f) of the CTTT Act.
83. The Tribunal was required to ensure that, so far as practicable, all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue before it : s 28(5)(b) of the CTTT Act.
84. The Tribunal is mandatorily obliged to ensure that each party in proceedings before it is given a reasonable opportunity to call or give evidence and otherwise present their case and to make submissions : s 35 of the CTTT Act.
Relevant authorities
85. There is a distinction to be observed between an error of law and an error involving fact for which there can be no appeal : Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. The scope of the appeal is limited to matters of law : HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292.
86. It is well settled that the words “with respect to a matter of law” in s 67(1) of the CTTT Act should not be given an unduly wide construction : Grygiel v Baine & Ors [2005] NSWCA 218 per Basten JA at [26].
87. Grygiel followed Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 where at [28]-[58] Bryson JA explained that the words “with respect to a matter of law” do not of themselves permit a wide construction where a separate statutory provision exists to enable a dissatisfied party to obtain prerogative relief from the Supreme Court, namely, pursuant to s 65 of the CTTT Act.
88. In Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 it was noted that Kalokerinos did not involve a question relating to the jurisdiction of the Tribunal and did not include a discussion of the extent to which, if it all S 67(8) of the CTTT Act had an impact on the width of construction of s 67(1) of the CTTT Act : Bahadori at [20] per Basten JA.
89. In Dayeian v Davidson [2010] NSWCA 42, at [38] Campbell JA noted that Bahadori was decided at a time before the advent of the Courts and Crimes Legislation Amendment Act 2008 when challenges to a decision of the CTTT lay within the jurisdiction of the Supreme Court and where an appellant could seek relief under ss 67(1) and 65 of the CTTT Act in the alternative.
90. Over-arching all these considerations is the principle that an appeal under s 67(1) of the CTTT Act is limited to a “decision” of “a question” by the Tribunal “with respect to a matter of law” : Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38 per Basten JA at [12].
91. Of itself, procedural unfairness in the manner in which the Tribunal determined a case does not constitute an error with respect to a matter of law. However, there are circumstances in which a failure on the part of a Tribunal to afford procedural fairness, such as refusal to grant an adjournment, may involve a “decision” on a matter of law : Obietta v Consumer Trader & Tenancy Tribunal [2009] NSWCA 220 per Basten JA at [6].
92. In the paragraphs that follow I set out my consideration of the matters raised by the grounds of appeal.
Consideration of Issue 1 – The limitation question
93. At the outset of the hearing of the appeal, on behalf of Malaysian Airlines, it was submitted that Mr Patel’s appeal was not competent because his summons had been filed out of the prescribed time. The basis for that submission was that the relevant decision of the Tribunal was given on 5 June 2009, which meant that the due date for filing of the summons was within 28 days, namely by 3 July 2009, whereas Mr Patel’s appeal was filed 11 days later on 14 July 2009.
94. During the course of the hearing, after hearing argument on the issue, I made an order nunc pro tunc in which I set out my separate reasons for granting leave to extend the time for filing of the appeal to 14 July 2009. In summary, I made that order because I considered that the dictates of justice required that Mr Patel be given an extension of time : s 57 of the CP Act 2005. I considered that there was no significant prejudice shown to Malaysian Airlines if such an order were to be made.
95. Having regard to the chronology of events outlined by Mr Patel in his evidence, where he unsuccessfully sought to secure a rehearing before the Tribunal following the decision of 5 June 2009, which application was refused by the Tribunal on 17 June 2009, and such refusal was formally notified to him on 7 July 2009, I considered that it was only just that Mr Patel’s appeal to this court filed on 14 July 2009 should be regularised by the making of an order extending the time for filing an appeal to this Court.
Consideration of Issue 2 – Claimed failure to assess damages for inconvenience
96. Mr Patel’s claim before the Tribunal included not only a claim for the value of the goods discarded at Mumbai airport but it also included a claim for distress or inconvenience. There can be no doubt that orders made by the Tribunal were limited only to the value of the goods claim without any element for distress or inconvenience. This is evident from the reasons expressed by the Tribunal that identified the calculation of damages in the amount of $918 being for 20kgs of lost goods at the rate of $45.90 per kilogram.
97. In the context of a discussion over the disputed quantum of disallowed baggage, the transcript of the proceedings in the Tribunal shows that on behalf of Malaysian Airlines, Ms Everett conceded that there was fault on the part of the airline:
“ … Our staff do admit that they did make an error. …”
98. The transcript of the Tribunal proceedings also shows that Malaysian Airlines also conceded before the Tribunal that it would pay an amount for inconvenience. This arose in the context of a reference by the Tribunal Member to “the last hearing” on 9 April 2009. Following that inquiry the Tribunal Member was informed of what I consider to have been a concession made by Malaysian Airlines :
“EVERETT: Sorry. Well we did agree that we would pay Mr Patel the 10 kgs in baggage weight that his children did not receive, plus an additional amount for inconvenience.”
99. The orders made by the Tribunal clearly took no account of that concession.
100. The Tribunal resolved the dispute as to whether the weight of the disallowed goods was 10kgs or 20kgs in favour of Mr Patel. Whatever the contended weight of discarded baggage was, it was the fact that the baggage was not checked in and loaded at the weight that had been agreed upon that gave rise to Mr Patel’s claim against Malaysian Airlines once he became aware of what had happened with regard to that conceded error.
101. An argument against Mr Patel’s entitlement to damages for inconvenience and distress is that any such damages constitute non-economic loss within the meaning of s 16 of the Civil Liability Act 2002 [“CL Act”], such that the threshold could not be said to have been met, and therefore no such damages could be awarded to Mr Patel.
102. In my view the flaw in that argument is that notwithstanding that s 3 of the CL Act defines “damages” to include any form of monetary compensation, damages for non-economic loss within the meaning of s 16 are confined to mean pain and suffering, loss of amenities of life, loss of expectation of life and for disfigurement : s 3 of the CL Act. Non-economic loss, so defined, cannot therefore be taken to mean damages for distress and inconvenience arising out of the breach of an agreement. That is a view that has been taken in a previous case in this Court and my view is in conformity with that view : Young vInsight Vocations Pty Limited [2009] NSWDC 122 per Rolfe DCJ at [51]-[54].
103. There is an argument that it was Mr Patel’s children and not Mr Patel who have suffered the inconvenience, distress and the like and therefore, no damages are awardable to Mr Patel on that account.
104. In my view that argument is flawed because it fails to recognise that the claim is a contractual one. It was Mr Patel who paid for the tickets, not his children. It was therefore Mr Patel who contracted with Malaysian Airlines. Whilst his children suffered distress and inconvenience as described as a result of the events complained of, it was Mr Patel who suffered the contractual loss. This apparently not only involved the lost goods, the value of which remains as yet undetermined, but he also lost the benefit of his bargain as well as incurring obvious inconvenience as a result of the loss of his goods and having to manage the distress of his children on their return Australia.
105. Whilst at this stage of the split trial the evidence on these matters remains incomplete, and I therefore express no concluded view on the point, it was nevertheless apparent that Mr Patel was quite vexed by these events, and the effect of these events on his children, who were subjected to stress and distress by the admitted fault of Malaysian Airlines.
106. It is not to the point to say Mr Patel had not pleaded a case for his own distress, inconvenience, vexation and the like. The absence of such a plea is no answer in a Tribunal which was not only obliged to ensure that all relevant material was disclosed to it – s 28(5)(b) of the CTTT Act – but which was also required to act without regard to technicalities or legal form – s 28(3) of the CTTT Act. The submission to the contrary ignores the fact that the loss of the discarded goods would at the very least be disappointing if not distressing and inconvenient to Mr Patel, not to mention matters arising from his reaction to becoming aware that his children had been distressed for some 14 hours after these events. At the very least, this could reasonably support an argument for damages for vexation and inconvenience.
107. In this Court, on behalf of Malaysian Airlines it was submitted that damages of this kind are too remote : Hadley v Baxendale (1854) 9 Ex 351. That submission was some considerable distance removed from what was conceded by Malaysian Airlines in the Tribunal. For the reasons that follow, I do not accept that submission.
108. By their contract the parties contemplated the carriage of 30kgs of luggage per passenger. The full extent of that contract was not honoured by Malaysian Airlines as a result of its admitted breach. It is well settled that the loss of the benefit of the contract can result in an award of damages for disappointment, distress and the like as an exception to Hadley v Baxendale. In my view such feelings would naturally flow from a breach of contract and in my view damages of this kind should have been at least considered by the Tribunal.
109. As to the contract itself Mr Patel was operating under the impression he had paid an extra $600 per ticket in order to obtain the extra luggage allowance. When this issue was examined, it became clear that the tickets he bought from Malaysian Airlines happened to be $600 per ticket more expensive than similar tickets with other airlines but the Malaysian Airline tickets had the extra luggage allowance. Nothing turns on this aspect of the matter as the contracted baggage allowance was 30kgs per passenger.
110. There can be no doubt that damages are awardable for distress, inconvenience and vexation arising from a breach of agreement : Baltic Shipping Company Ltd v Dillon [1993] HCA 4; (1993) 176 CLR 344 per Mason CJ J at [16]-[17], p 364. There, Mason CJ approved the following comment by Bingham LJ in Watts v Morrow [1991] EWCA Civ 9; (1991) 1 WLR 1421 at p 1445:
“Where the very object of contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective.”
111. There is little room for doubt that damages are awardable for inconvenience and the like caused by a breach of contract, including a tortious breach as is alleged in Ground 8 of Mr Patel’s appeal : per Santow JA in Leitch & Ors v Reynolds [2005] NSWCA 259 at [113]-[114], approving Johnson v Australian Casualty Company Limited (1992) Anz Ins Cases 61-109 and Walmsley v Cosentino [2001] NSWCA 403, also following the principle in Baltic Shipping.
112. In Johnson, McDonald J cited Falco v James McEwan & Co. Pty Ltd (1977) VR 447 where Anderson J reviewed the ambit of the damages awardable for inconvenience and the like and at pp 450-451 stated:
“Contract is primarily concerned with commercial matters and, therefore, the protection afforded by the law of contract is primarily directed to commercial losses ( McGregor on Damages, 13th ed, at p 63). Thus the ‘broad general rule of the law of damages’ for breach of contract is that ‘a party injured by the other party’s breach of contract is entitled to such money compensation as will put him in the position in which he would have been in but for the breach (per Lord Wright in Monarch Steamship Co. Ltd v A.B. Karlshamms Oljefabriker (1949) AC 196; at 220 …”
113. The authorities provide “aggrieved holiday makers, who have been sadly disappointed by the appallingly low holiday or travel facilities provided instead of the high standards contracted for, have recovered damages for the inconvenience, mental distress, upset and frustration which have resulted from breach of contract” : Anderson J in Falco, at pp 450-451 citing Jarvis v Swan Tours Ltd [1972] EWCA Civ 8; [1973] QB 233.
114. In my view the remoteness submission relied upon by Malaysian Airlines ignores the Baltic Shipping line of authority and I therefore do not accept that submission.
115. It is clear that in this instance the decision of the Tribunal did not take into account any damages for inconvenience and the like. As a matter of law, Mr Patel was entitled to a consideration of his entitlement to such damages for his own inconvenience, distress and the like to the extent that is not embodied in the notion of non-economic loss within the meaning of s 3 of the CL Act. The Tribunal failed to consider any such damages.
116. The way the matter proceeded in the Tribunal meant that Mr Patel was not given the opportunity to develop an argument or give evidence on this aspect of the matter. It was a matter on which the Tribunal was obliged to assist him, including by giving him a reasonable opportunity to call evidence on relevant issues : ss 28(5)(b) and 35 of the CTTT Act.
117. I consider that the non-inclusion of damages for inconvenience and the like was specifically engaged by Ground 8 of Mr Patel’s summons and amounted to a matter of law sought to be challenged on the appeal as explained by the applicable authorities : Dayeian, per Campbell JA at [35], citing Basten JA in HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 at [104] and Basten JA in Kalokerinos at [58]. In my view the non-inclusion of such damages attracts the operation of s 67(8) of the CTTT Act as to the failure of the Tribunal to exercise its jurisdiction on the disputed issue before it, and which involved a matter of law : Dayeian, per Campbell JA at [36]; Kostas, per Basten JA at [37].
118. Accordingly, I find that in this instance, the decision of the Tribunal involved a failure to exercise its jurisdiction to include or consider in its decision an available element of Mr Patel’s claim for a legal entitlement to damages for distress and inconvenience. I find that such failure involved a remediable decision with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
119. For the foregoing reasons I consider that the orders made by the Tribunal should be justifiably set aside.
Consideration of Issue 3 – Claimed procedural unfairness in declining adjournment
120. The record of proceedings in the Tribunal shows that the Tribunal Member decided not to adjourn the hearing of Mr Patel’s claim, notwithstanding that it was clear from Mr Patel’s statements to the Tribunal that he was not in a position to provide proof of the value of his claimed loss at the time of the hearing.
121. Three questions arise from these circumstances. The first such question involves the powers of the Tribunal to adjourn proceedings before it, the second such question involves an examination of the basis for the decision not to adjourn the proceedings and the third such question relates to whether the decision by the Tribunal not to adjourn the proceedings constituted procedural unfairness amounting to a decision with respect to a matter of law.
122. The framework for this issue is that it is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient to show that a resolution of a question of law is manifested in the decision : Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 per Hodgson JA at [28].
Power to adjourn proceedings
123. There can be no controversy that the Tribunal had power to adjourn the proceedings. Although the Tribunal was obliged to conduct proceedings before it in an expeditious and practicable manner, it also had the power to adjourn proceedings before it if this was required : s 28(5)(a) of the CTTT Act.
Basis of the decision not to adjourn the proceedings – procedural unfairness
124. It was clear from the record of the proceedings in the Tribunal that Mr Patel was not in a position to proceed and to present evidence that was required in order to prove the quantum of his claim for the value of the discarded goods. It is also clear from the record that this was a matter known to the Tribunal Member as a result of the interchanges that are recorded in the transcript of the proceedings.
125. Mr Patel’s statements to the Tribunal made this clear and this was also clear from his evidence given in the appeal. Mr Patel’s explanation was that he was not versed in legal procedures and he did not understand what he was required “to discuss” at the hearing. I accept Mr Patel’s explanation in this regard as inherently reasonable and not glaringly improbable.
126. A point arose in the proceedings when it became abundantly clear to the Tribunal that there was a need for a consideration of an adjournment. In fact the Tribunal Member raised the issue of a possible adjournment and then dismissed it, stating that he was disinclined to adjourn the proceedings.
127. This became evident when the Tribunal identified to Mr Patel the problem of perceived lack of proof for his claim. The Tribunal Member informed Mr Patel that in his view, there was no corroborative evidence, or good evidence, for him to make an order in his favour. In the face of Mr Patel’s surprised response of “That’s terrible” and Mr Patel’s statement that he did not know what the Tribunal allowed as proof, as well as Mr Patel’s related inquiry as to what was required for proof, the Tribunal Member stated that he “simply didn’t have the inclination to adjourn” the proceedings.
128. The reasons for that decision were firstly, the consideration that both parties would incur further costs if there was an adjournment. Secondly, a perceived uncertainty on the part of the Tribunal Member over whether, at an adjourned hearing, Mr Patel may or may not be able to then provide the requisite proof. In my view, these reasons indicated that extraneous and irrelevant considerations had been taken into account in relation to the question of an adjournment. This involved procedural unfairness to Mr Patel.
129. On the issue of further possible costs, it is clear that the Tribunal Member acted on the erroneous basis that there had been an earlier hearing of the merits of the case. This is evident from his statement “… this matter has already been before the Tribunal and its come back to the Tribunal.” There had been no hearing on the merits on the previous occasion and Mr Patel had incurred no costs in respect of a hearing on that occasion. When the reasons of the Tribunal are analysed it is clear from this statement that the Tribunal Member was only giving consideration to the costs incurred by Malaysian Airlines as Mr Patel had not incurred any earlier costs and therefore the question of “further costs” to him did not reasonably arise.
130. On the issue of whether or not Mr Patel would have been able to provide the Tribunal with evidence constituting proof on an adjourned hearing, it is clear that the Tribunal took into account speculative and irrelevant considerations. This included the unwarranted assumption that, given the opportunity, Mr Patel could not provide evidence of proof of the value of his discarded goods. I consider that, in doing so, the Tribunal did not properly exercise its mandatory jurisdiction requiring that it ensure that all relevant material was disclosed to the Tribunal. In this regard the Tribunal was required to ensure that, so far as practicable, all relevant material was disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue before it : s 28(5)(b) of the CTTT Act.
131. In Dayeian, at [72], Campbell JA explained that the obligation of the Tribunal under s 28(5(b) had three limiting components. First, the material in question is required to be potentially relevant. Secondly, the qualifying limitation was “as far as practicable”. Thirdly, the Tribunal was obliged to place itself into a position where it could determine all the relevant facts in the proceedings.
132. In this regard the Tribunal was required to act with a little formality as the circumstances of the case permit according to equity, good conscience and substantial merits of the case without regard to technicalities or legal form : s 28(3) of the CTTT Act.
133. Further, as the arbiter of questions of fact, the Tribunal was obliged to exercise some patience, latitude and leniency to Mr Patel. The CTTT was also required to explain and provide him with some degree of basic assistance to prevent potential disadvantage to him as an unrepresented party concerning traps that adversarial procedures may and can provide to the unwary and untutored : Rajski v Scitec Corporation Pty Ltd (NSW Court of Appeal, unreported, 16 July 1986 per Samuels JA. This case was cited with approval in Caladine v NSW HCCC [2007] NSWCA 362, per Beazley JA at [55]. In my view, this obligation extended to giving properly balanced consideration to the possible need for an adjournment.
Procedural unfairness amounting to a decision on a question with respect to a matter of law
134. In my view, the cited statutory and procedural obligations on the Tribunal extended to providing Mr Patel with the reasonable opportunity that an adjournment would afford him to present the required evidence to support his claim.
135. Early in the proceedings the Tribunal Member advised Mr Patel as to what was considered necessary for proof according to the civil standard. In particular the Tribunal told Mr Patel that it acted upon proof on the balance of probabilities. In this regard, the Tribunal Member indicated, by illustration, that support for the claim made by Mr Patel could be achieved by “… producing receipts or statutory declarations or affidavits” : Exhibit “A” page 2.
136. Having given Mr Patel that illustrative advice, in my view, the Tribunal Member then failed to provide Mr Patel with the opportunity to follow through with this advice. An adjournment would have provided Mr Patel with an opportunity to “come back” with the evidence that was required in order to attempt to prove his claim.
137. I find that in these circumstances, when the Tribunal Member declined to adjourn the proceedings, Mr Patel was denied procedural fairness.
138. The question remains as to whether, in the circumstances of this case, such procedural unfairness can amount to a question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
139. Clearly, on the authorities cited the question so posed is a narrow one : Grygiel at [26]; Kalokerinos at [28]-[58].
140. Equally clearly, given the existence of an available avenue for seeking the remedy of prerogative relief in the Supreme Court, procedural unfairness of itself in the manner in which the proceedings were conducted is not a remedy that is available in this Court : s 65 of CTTT Act; Kalokerinos.
141. There must be something more shown to have occurred in the decision making process : Bahadori. This must be shown to have concerned the “decision” of the Tribunal; S 67(1) of the CTTT Act; Bondi Beach Astra Retirement Village Pty Ltd; Obietta at [6].
Conclusion on procedural unfairness in declining adjournment
142. I have concluded that the expressed disinclination of the Tribunal to adjourn the proceedings was a “decision” within the meaning of s 67(1) of the CTTT Act. I also consider such decision involved a failure on the part of the Tribunal to exercise the jurisdiction conferred upon it by ss 28(3) and s 28(5)(b) of the CTTT Act. That failure concerned the obligation to ensure all relevant facts were disclosed to the Tribunal and the reasonable exercise of the power to adjourn the proceedings.
143. I consider that an adjournment, if ordered, would have facilitated Mr Patel’s capacity to assist the Tribunal to observe the requirements of s 28(5)(b) of the CTTT Act and present potentially relevant material to enable a determination of the relevant facts in dispute. The case before the Tribunal had no special features that militated against the practicability of an adjournment where fairness required that the litigant in person had not hitherto understood that he had to bring evidence with him to the Tribunal. Once Mr Patel had been informed of the need for evidence he was then on an obvious quest for what it was that was regarded as being proof, having then indicated he could obtain proof of purchase. There was nothing inherently impracticable about that indication which contraindicated an adjournment.
144. In my view, the decision of the Tribunal to proceed expeditiously without an adjournment, as was manifest in the disinclination to adjourn the proceedings, did not mitigate or override the right of Mr Patel to be given the opportunity to obtain and present the evidence that he belatedly came to realise was required. In my view this analysis demonstrates a question of law implicit in the decision of the Tribunal notwithstanding that the Tribunal Member’s decision did not identify a question of law. As such, this amounted to a misdirection in the discharge of its jurisdiction : Lambert [2009] NSWCA 102 per Hodgson JA at [28], following Douglas v NSW Land and Housing Corporation [2008] NSWCA 315 per Tobias JA at [17] – [18].
145. I consider that the decision of the Tribunal expressing a disinclination to adjourn the proceedings and to proceed to dispose of the proceedings without affording Mr Patel the opportunity to obtain and present relevant facts and material amounted to procedural unfairness to Mr Patel. I find that such procedural unfairness did not concern a matter of fact, or a mixed question of fact and law, but was purely a decision on a question with respect to a matter of law : Azzopardi; ss 28(3) and 28(5)(b) of the CTTT Act. As such, I find such circumstances did not just involve procedural unfairness but constituted procedural unfairness falling into that special category of case where the non-adjournment of the case involved a “decision” on a matter of law : Obietta per Basten JA at [6].
146. In the circumstances I am satisfied that there was a denial of procedural fairness that involved a decision on a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
147. For the foregoing reasons I consider that the orders made by the Tribunal should be justifiably set aside.
Consideration of Issue 4 – Claimed apprehension of unfairness and bias
148. Mr Patel’s expressed dissatisfaction following the determination made by the CTTT was wide-ranging. That dissatisfaction extended to a complaint that the proceedings were conducted unfairly to him. The submission made on behalf of Malaysian Airlines rejected that contention and drew attention to the “extremely limited” nature of this Court’s jurisdiction to intervene concerning matters of alleged unfairness arising in the CTTT.
149. Notwithstanding that I have concluded that following a consideration of Issues 2, 3 and 4, the orders made by the Tribunal should be set aside, I consider that by their very nature and seriousness, the remaining allegations concerning claimed unfairness in the conduct of the proceedings and Mr Patel’s perception that there was bias against him, the grounds involving these allegations should be carefully evaluated.
150. This requires an examination of whether, and if so, how, Mr Patel could have reasonably obtained a perception that there was unfairness or bias against him.
151. When the transcript of the proceedings before the Tribunal is analysed, apart from the adjournment issue, which I have already reviewed in connection with my consideration of the previous issue of procedural unfairness in not adjourning the proceedings, Mr Patel’s claims in this regard can be essentially confined to 6 areas that arose in the course of the hearing that took place before the CTTT.
152. On behalf of Malaysian Airlines it was submitted that the Court should not “trawl” through the transcript of the Tribunal in search of error. In an ordinary case that is undoubtedly so, however, this is not an ordinary case and Mr Patel was unrepresented. Notwithstanding the submission made, in view of the relative gravity of Mr Patel’s complaints, and in view of the respectful earnestness with which he has sought to highlight them in this appeal, I consider that the interests of open justice requires that the questions of alleged unfairness and perceived bias should be examined by reference to the transcript of the proceedings in the Tribunal.
153. Accordingly, in the paragraphs that follow, I will review these 6 identified areas of concern. The framework for that consideration necessarily requires that I must bear in mind the distinction between errors of law arising in the course of the proceedings under examination, and for which, if established, prerogative relief could have been sought from the Supreme Court pursuant to s 65 of the CTTT Act, and any questions that might arise in connection with a decision on a question with respect to matters of law, which invokes the jurisdiction provided by s 67(1) of the CTTT Act : Dayeian at [38].
154. The first matter raised by Mr Patel was his concern over his perception that he was not given equal treatment in the Tribunal when compared to the manner in which the Tribunal Member received statements that were made by the representative of Malaysian Airlines, such that he felt there was bias operating against him.
155. The argument in favour of Mr Patel’s view is that the Tribunal Member correctly told Mr Patel that the manner in which the Tribunal operated was that it resolved proceedings on the civil standard of proof on the balance of probabilities. In addition, the Tribunal Member went on to outline to Mr Patel the need for him to have evidence to corroborate his claim by receipts, statutory declarations or affidavits, with some scope for admission of hearsay evidence. However, the Tribunal Member appeared to take a different course with regard to the reception of statements made by the Malaysian Airlines representative.
156. In that regard, in the context of a dispute between the parties over the weight of the discarded goods, the Tribunal Member told Mr Patel he was inclined to accept Ms Everett’s necessarily hearsay account because she “…had no particular interest in giving untruth to the Tribunal. She has no doubt certain instructions.”
157. In this regard there was a potential for Mr Patel to perceive that his position was being treated inconsistently or differently, or, as he put it, in a way that discriminated against him, compared to the way the statements made by the representative of Malaysian Airlines were treated on matters of proof. In reality, Ms Everett’s “instructions” were in no different a category than the account of the events in Mumbai that Mr Patel had obtained from his two children.
158. Notwithstanding the scope for his perception, the fact remains that Mr Patel’s principal contention in the proceedings, namely the claimed loss of 20kgs of goods, was preferred over the 10kg contention proffered by Malaysian Airlines. In my view the outcome of that issue in favour of Mr Patel counterbalances and negates any such perception of unfairness or bias against Mr Patel, as raised by him on this issue.
159. The second area concerns an apparent element of confusion introduced into the proceedings by the repeated reference as to what had occurred in a differently constituted Tribunal at the earlier ex parte hearing. Notwithstanding that the Tribunal Member had specifically stated that he was not concerned with that earlier hearing, the fact of the earlier ex parte hearing was brought up on several occasions, both by the Tribunal Member and also by Ms Everett. In my view the significance of this could have readily caused confusion in the mind of a lay person in the position of Mr Patel who did not have any legal training. Whilst this source of confusion may have been seemingly unfair, I do not consider that this amounts to a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
160. The third area relates to a reference by the Tribunal Member to an earlier offer apparently made by Malaysian Airlines to compensate Mr Patel. That reference to an offer was in my view an extraneous and inappropriate matter that should not have been introduced into the proceedings. The position may have been different if Malaysian Airlines had transparently made an open offer to Mr Patel in the proceedings. However, the record does not permit that interpretation. Instead, it seems that the reference in the transcript to an offer being made was made by way of ex cathedra reference to the ex parte proceedings in the context of a de novo hearing where the Tribunal Member was initially at pains to eschew any reference to any previous hearing. Notwithstanding the statement by the Tribunal Member to the effect that he was not cognisant of what happened at the earlier hearing, the representative of Malaysian Airlines nevertheless continued to inform the Tribunal Member of what the airline had agreed to pay Mr Patel. By these means I consider that Ms Everett unfairly introduced evidence of what “was agreed” at “the last hearing” which was conducted in the absence of Mr Patel. Mr Patel had “agreed” to no such thing. The fact that the Tribunal Member who presided over the earlier ex parte hearing may have noted what Malaysian Airlines may have agreed to pay a certain amount. The Tribunal’s acceptance of that proposition could not have been binding on Mr Patel and it should not have been introduced into evidence. I consider that the fact that it was, involved basic unfairness.
161. In my view this circumstance had the potential to unfairly influence the mind of the Tribunal Member as to the manner in which the claim should be resolved. In this regard, I consider that a contaminating element of unfairness was inappropriately introduced into the proceedings in a manner and in a context that Mr Patel could not have reasonably addressed as it concerned matters that had occurred in his absence. Notwithstanding that view, whilst I consider that these circumstances amount to unfairness, they did not involve a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
162. The fourth area of concern relates to a lack of opportunity for Mr Patel to present relevant evidence. Without attempting to evaluate the strengths and weaknesses of the limited opposing evidence before the Tribunal, it is plain from the record that Mr Patel was not given the opportunity to obtain or introduce evidence in support of his claim in conformity with the obligation on the Tribunal to ensure that such material was disclosed to it : s 28(5)(b) of the CTTT Act. Instead, the Tribunal took an expedient course for the quantification of his claim. This was not based on evidence of the reasonable value of the goods discarded, but upon a consideration of the contended value of excess baggage weight charges that was put forward in the form of an opinion by Malaysian Airlines. That process was necessarily arbitrary and was one that Mr Patel maintained was unfair to him. He was not afforded the opportunity to offer his own opinion, even if such opinion was necessarily based on permissible hearsay. I consider that these circumstances amount to an instance of unfairness. Once again, whilst I consider that what occurred in this regard was unfair, I do not consider that it involved a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
163. The fifth area of concern relates to Mr Patel’s opportunity to be heard. It appears from the record that Mr Patel, who did not possess any skills for legal debate or discourse, was interrupted on a number of occasions in the context of a relatively short hearing and it appeared that he had been deflected from argument with distracting side issues. These side distractions included the mention on several occasions of what took place at the previous ex parte hearing and a question concerning whether Mr Patel’s children had mobile telephones when they were at Mumbai. I consider that these events had the potential to side-track the thoughts of someone in the position of Mr Patel from presenting in an orderly manner, his position in the litigation. In my view this had the potential to be procedurally unfair and disadvantageous to Mr Patel in the context of what was a very short hearing. That said, I do not consider that this involved a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
164. The sixth area of concern is that it appears that Mr Patel was not afforded the required level of guidance and latitude that was entitled to expect from the Tribunal in the fulfilment of its statutory obligation to ensure that all relevant material was disclosed to the Tribunal to enable it to determine all of the relevant facts in issue before it. There appears to have been an early but limited attempt to draw out Mr Patel’s position. Instead, it appears that Mr Patel was peremptorily told he had no evidence to support his claim and when he sought to enquire as to what was needed for proof of his claim the Tribunal Member expressed his disinclination to an adjournment. What then followed was that Mr Patel was not given the opportunity to present such hearsay evidence that he may have been able to marshal and introduce, as was provided for by s 28(2) of the CTTT Act. This opportunity simply did not occur. Instead, over Mr Patel’s protests, a peremptory result ensued. Even though in my view that circumstance operated unfairly against Mr Patel, I do not consider that it involved a remediable question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act.
165. Having reviewed the foregoing matters, I consider that the complaint concerning Mr Patel’s apprehension that the Tribunal Member was biased against him has not been made out. It is an easily made criticism in the context of proceedings that were conducted relatively informally in the Tribunal in a little over 21 minutes, as Exhibit “E” shows, and where this was required to be achieved without resort to overly legal technicality insofar as it was reasonably possible to do so, without the assistance of legal advice.
166. In such circumstances, it may appear understandable that a person in the position of Mr Patel, being untutored in the procedures of the Tribunal, could have perceived that his claim was being dealt with unfairly or even in a manner involving possible bias. However, the test for determining unfairness or apprehension of bias in the circumstances is not the perception arising in the mind of a disgruntled litigant.
167. In my view, in the circumstances under examination, a reasonable and fair-minded observer would not have concluded that there was a reasonable apprehension of bias against Mr Patel in the conduct of the proceedings by the Tribunal Member. I therefore do not accept Mr Patel’s argument that the Tribunal Member was actuated by bias or that there was a reasonable apprehension of bias in the circumstances. This is so especially since, as was submitted by counsel appearing for Malaysian Airlines, the contested issue of the weight of the luggage discarded in Mumbai was ultimately decided in Mr Patel’s favour by the Tribunal Member.
168. This leaves for consideration the issue of alleged unfairness in the conduct of the proceedings. For the reasons that I have outlined in the preceding paragraphs in connection with the second, third, fourth, fifth and sixth points that concerned the alleged claim of unfairness, I consider that those matters have been made out.
169. Notwithstanding that view, I have nevertheless concluded that these matters do not amount to remediable questions arising from a decision with respect to matters of law arising under s 67(1) of the CTTT Act. These are matters for which there is no jurisdiction or remedy in this Court. Instead, I consider that the matters identified would more properly call for prerogative relief. Unfortunately for Mr Patel, such relief is only obtainable by order of the Supreme Court pursuant to s 65 of the CTTT Act as a result of the operation of the legislative amendments introduced by the Courts and Crimes Legislation Amendment Act 2008. If relief was to be sought for such matters, the decision of the Tribunal had to be challenged in the Supreme Court : Dayeian per Campbell JA at [38].
170. The inherent procedural complexity and potential for confusion arising from such a dual or bifurcated scheme for remedies, in the context of the workings of a Tribunal in which there is a requirement that there be little formality, where technicalities and legal form are to be avoided, and where the parties do not have as a matter of course, legal representation, has already been critically and authoritatively remarked upon : Grygiel per Basten JA at [19]; Obietta, per Basten JA at [9]. The careful analysis required for making the appropriate choice of forum for challenge, as identified by Campbell JA in Dayeian at [38] presents obvious difficulties for litigants in person. This case is an example of those difficulties.
Consideration of Issue 5 – Remittal or rehearing
171. Having determined that the decision of the Tribunal involved several questions with respect to matters of law within the meaning of s 67(1) of the Act and justifying setting aside the orders made by the Tribunal, it remains necessary to determine whether or not to remit the proceedings to the Tribunal for a rehearing or for the Court to make the determinations that should have been made by the Tribunal as provided for by s 67(3)(A) of the Act.
172. Malaysian Airlines submits that the proceedings should be remitted back to the Tribunal. In support of that submission it points out that to do so would be a cheaper option because there would be no legal representation in the Tribunal, and therefore the cost of finalisation of the matter associated with remittal would be cheaper than a hearing in this court where there would be legal representation. Mr Patel, whose confidence in the Tribunal appears to have been somewhat shaken by the events in question, requests that the matter be determined to finality in this Court.
173. The submission in favour of remittal back to the Tribunal has some attraction because of the costs considerations identified. However, I consider that any such attraction is only superficial when the other relevant considerations are taken into account. If the matter were to be remitted to the Tribunal there would undoubtedly be delay and inconvenience whilst a freshly constituted Tribunal became seized of the matter. In my view these factors would have the effect of detracting from the spirit and intent of s 56(1) of the CP Act because in my view, in such circumstances, inadequate regard would then be had to the other overriding considerations namely, the just and quick requirements of the section, at the expense of over-emphasising the cheapness factor : s 56(1) of the CP Act.
174. Further, if legal costs are truly an issue in this case it is worth observing that the remainder of the matters requiring attention for final orders to be made in this matter are not particularly complex such as to necessarily warrant the retention of counsel when a solicitor versed in the procedures of litigation would without doubt be able to deal with the matter in this Court. Such a course would involve a lesser expenditure in terms of legal costs. In making this illustration I do not wish to be understood to be suggesting that counsel should not be briefed, as that is entirely a matter for the party concerned and not for the Court.
175. Having regard to the subject matter of the appeal and the relative size of the claim, I consider that rather than remitting the matter to the Tribunal for a complete rehearing, with associated delay, this is an appropriate case for the Court to undertake the rehearing and make orders as if they were made in the Tribunal : s 67(3)(a) of the CTTT Act.
176. In the circumstances I have outlined, I consider that Mr Patel should not be required to return to the Tribunal for a finalisation of the matter. Accordingly, I propose to hear and finally determine the remaining issues on a date suitable to the parties in the coming weeks. This course will require that Mr Patel be given the opportunity to tender the evidence he wishes to rely upon, an opportunity that was denied to him in the Tribunal : s 67(7) of the CTTT Act. That course will also require that Malaysian Airlines be given the opportunity to present evidence as well as the opportunity of commenting upon any evidence introduced by Mr Patel. With this aim in mind I propose to give directions to facilitate a just, quick and cheap finalisation of the proceedings.
177. In this regard, having heard the submissions made on behalf of Malaysian Airlines concerning the suggested need for that airline to either fly relevant witnesses from Mumbai to Sydney or to at least take evidence from them by means of video link for a contest on the issue of whether the amount of the discarded luggage was 10kgs rather than the 20kgs, as was determined by the Tribunal, in circumstances where there is an admitted breach, I consider that the likely cost and inconvenience of such a course is fundamentally unreasonable and wholly disproportionate to the amount at stake and to the issues at stake.
178. In those circumstances, given the finding in the Tribunal that Mr Patel’s discarded goods weighed 20kgs rather than 10kgs, and given that such a finding was open to be made by the Tribunal on all the evidence that Malaysian Airlines was content to introduce at the hearing in the Tribunal, and given also that Malaysian Airlines makes no complaint over that finding against it, I consider that in the interests of facilitating a just, quick and cheap resolution of the proceedings, the rehearing should exclude the issue already determined by the Tribunal, namely the weight of the discarded goods in question at 20kgs and not 10kgs.
179. In all other respects, the orders of the Consumer, Trader and Tenancy Tribunal in its General Division made on 5 June 2009 in this matter are set aside.
180. Accordingly, after taking evidence of the kind that should have been admitted into evidence at the hearing before the CTTT, and after hearing submissions from the parties concerning the significance of such evidence, I propose to give consideration to the making of orders which should have been made by the Tribunal : s 67(3)(a) of the CTTT Act.
Disposition
181. Mr Patel has demonstrated that the Tribunal made relevant errors in its decision with respect to matters of law justifying intervention. The appeal must therefore necessarily be allowed. After the delivery of these reasons I propose to hear from the parties and issue directions on the manner and timing for the determination of the remaining issues, in the event that those issues are not capable of consensual resolution beforehand.
Orders
182. I make the following orders:
(a) Mr Patel’s appeal is allowed;
(b) The decision of Consumer, Trader and Tenancy Tribunal by Tribunal Member PM Briggs dated 5 June 2009 is set aside, save for the finding that the amount of luggage Malaysian Airlines declined to check in and load and which was therefore discarded at Mumbai airport on 27 January 2009 was 20kgs;
(c) I appoint a directions hearing before me at 9.30 am on Thursday 1 April 2010 for making orders and directions concerning the resumption of the hearing to deal with the question of damages. In the interests of saving costs, if the parties indicate a preference to my Associate for the directions hearing to proceed by means of a telephone conference at the appointed time and date without the necessity for them to attend in person, I am prepared to so order;
(d) Malaysian Airlines are to pay Mr Patel’s agreed or assessed costs concerning the determination of the split issues;
(f) Liberty to apply on 7 days notice, if further orders are required.(e) Malaysian Airlines is to have a certificate under the Suitor’s Fund Act 1954, if entitled;
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