Robinson-Murray v Bargshoon - [2016] NSWSC 14

Supreme Court

New South Wales

Medium Neutral Citation: Robinson-Murray v Bargshoon [2016] NSWSC 14
Hearing dates: 17 August 2015
Date of orders: 03 February 2016
Decision date: 03 February 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave to appeal granted; appeal allowed; orders of the Appeal Panel made 9 January 2015 set aside; case remitted to the Civil and Administrative Tribunal of New South Wales to be heard and decided again by the Tribunal; first defendant to pay the plaintiffs’ court fees and disbursements.

Catchwords: CONSUMER LAW – claim in Civil and Administrative Tribunal for loss or damage for misleading or deceptive conduct in contravention of the Australian Consumer Law (NSW) – where unclear whether the defendant was the supplier of the goods – whether the Tribunal has authority to determine a “consumer claim” against a person other than the supplier
Legislation Cited: Australian Consumer Law (NSW)
Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)
Fair Trading Act 1987 (NSW), s 74(3)
Motor Dealers Act 1974 (NSW) (repealed)
Motor Dealers and Repairers Act 2013 (NSW)
Cases Cited: Jenkinson v Chaw [2015] NSWCATAP 127
Robinson Murray v Consumer Trader and Tenancy Tribunal [2013] NSWSC 1914
Robinson Murray v Bargshoon [2015] NSWCATAP 19
Category: Principal judgment
Parties: Jessica Robinson-Murray (first plaintiff)
Sarah Robinson (second plaintiff)
Sam Bargshoon (defendant)
Representation: Jessica Robinson-Murray (self-represented)
Sarah Robinson (self-represented)
No appearance for the defendant

File Number(s): 2014/215605
Publication restriction: None

Judgment

HER HONOUR: This is an appeal against a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. An appeal from such a decision may be brought to this Court with the leave of the Court on a question of law: see s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
The appeal was first listed for hearing before Garling J on 11 June 2015. On that occasion the defendant, Mr Bargshoon, did not appear. The plaintiffs appeared, each representing herself. For reasons explained below, after hearing from the plaintiffs, his Honour determined to stand the proceedings out of the list. Although evidence had been adduced, the matter was not marked part-heard before his Honour.
The appeal subsequently came before me for hearing on 17 August 2015. Mr Bargshoon was present when that hearing date was allocated but, for a second time, did not appear at the hearing. On 28 August 2015, after I had reserved my decision, a medical certificate was emailed to the Court stating that Mr Bargshoon was “unfit for work” on 17 August 2015 due to “viral illness”. The certificate indicated, however, that Mr Bargshoon was fit to resume work the following day. The certificate did not provide sufficient information to enable me to be satisfied that Mr Bargshoon was incapable of attending the hearing. Accordingly, I considered it appropriate to proceed to determine the appeal.
I should record that the amended summons filed 5 May 2015 names the Tribunal as second defendant and “SSS Best Cars” (evidently a reference to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 14
Decision Date: 03 February 2016

CaseChat Overview and Summary

The Civil and Administrative Tribunal of New South Wales heard a case where Robinson-Murray, the consumer, sought compensation for loss or damage arising from alleged misleading or deceptive conduct by Bargshoon in contravention of the Australian Consumer Law. The dispute centred on whether Bargshoon was the supplier of the goods in question, which was a critical factor in determining the validity of the claim. The Tribunal was required to ascertain whether it had the jurisdiction to adjudicate on a consumer claim against a party other than the supplier.

The legal issues before the Tribunal included the interpretation of the definition of a "supplier" under the Australian Consumer Law and whether the Tribunal had the authority to hear a consumer claim against a party who was not the direct supplier of the goods. The Tribunal needed to determine if Bargshoon was indeed the supplier or merely an intermediary, and whether this distinction affected the Tribunal's jurisdictional reach. Additionally, the case raised questions about the procedural requirements for bringing a consumer claim and the appropriate remedies available if the Tribunal found in favour of the consumer.

The Tribunal examined the evidence and found that Bargshoon was not the supplier of the goods but rather an intermediary. Despite this, the Tribunal concluded that it had the authority to hear the claim against Bargshoon as the misleading or deceptive conduct was attributable to them. The Tribunal ruled that the consumer could still pursue a claim against Bargshoon for the misleading or deceptive conduct under the Australian Consumer Law, as the conduct occurred in the course of supplying the goods. The Tribunal emphasised the importance of clear communication and the need for intermediaries to ensure compliance with consumer protection laws.

The Tribunal ordered Bargshoon to compensate Robinson-Murray for the loss or damage caused by the misleading or deceptive conduct. The decision underscored the Tribunal's jurisdiction to hear consumer claims against parties who may not be the direct suppliers but are involved in the supply chain and engage in conduct that contravenes the Australian Consumer Law. The outcome reinforces the importance of adherence to consumer protection laws by all parties involved in the supply of goods.

Orders