Soulis v R & A Henry Auto Repairs & Ors (No 3)

By a summons filed on 24 November 2021, Andrew Soulis (the plaintiff) commenced proceedings in this Court seeking leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Panel). The order sought in the summons is pleaded in the following terms:

The pleadings in the summons are somewhat discursive. The grounds of appeal (in the terms which they have been pleaded) are as follows:

The plaintiff has brought the proceedings pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) which is in the following terms:

It is necessary to emphasise at the outset that s 83(1) provides that an appeal can be brought in this Court only with leave, and only on a question of law. The words “on a question of law” as they appear in s 83(1) require the plaintiff to properly define the question(s) of law in respect of which leave to appeal is sought, a requirement which has consistently been emphasised. [1] Its importance stems from the fact that the existence of a question of law is not merely a qualifying condition to ground the appeal, but is also the subject matter of the appeal itself. [2] The requirement to clearly articulate the question(s) of law relied upon was explained by Pagone J (in the context of a corresponding provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic)) in Hoe v Manningham City Council: [3]

It follows that it is essential for the plaintiff to precisely identify the question(s) of law in respect of which he seeks leave to bring the appeal. Merely asserting errors of law in various respects is insufficient. [4]

Before turning to the two notices of motion which are before the Court, it is necessary to address a number of preliminary matters.

On 4 August 2022 my associate received an email from the plaintiff which stated (inter alia) the following:

Attached to that email was a medical certificate dated 1 August 2022 under the hand of Dr K Koutsoullis which stated (inter alia) that medical conditions from which the plaintiff is said to suffer render him “very susceptible to coronavirus infection” as a consequence of which he had been “advised to stay away from crowds especially in enclosed spaces for prolonged periods”. Notwithstanding the fact that a personal appearance before the Court would not, at least by itself, have necessitated the plaintiff being in a crowd within an enclosed space for a prolonged period, I acceded to his request that he appear remotely at the hearing of the notices of motion on 17 August 2022. The plaintiff was advised accordingly and was provided with the necessary login details.

On 16 August 2022, the day prior to the hearing, my Associate received an email from the plaintiff which included the following:

The application, which extended to some 23 pages, asserted that I had (inter alia):

In addressing this application, I commence by noting that these proceedings have been for me on numerous occasions for directions. The transcripts of those directions hearings tend overwhelmingly against the proposition that I have conducted the proceedings in a way which was unfair to the plaintiff. The remaining allegations are entirely without substance and, in many respects, are not dissimilar to those relied upon by the plaintiff in a previous application for my recusal, which I refused. [5] For these reasons, the present application is similarly refused.

At 8:04am on 17 August 2022, being the day of the hearing, my Associate received an email from the plaintiff in the following terms:

Attached to that email was a document described as a “screenshot” which contained a message in the following terms:

The section above that screenshot, which would normally disclose (inter alia) the time that the message was received, was obscured.

At 8:32am, upon being made aware of the plaintiff’s correspondence, my Associate sent an email to the plaintiff in the following terms:

At the commencement of the hearing at 10:00am, no response had been received to that that email. Having confirmed that the plaintiff was not present (in person or virtually), I appraised the solicitor for the defendants of these developments and expressed the view that the correspondence received from the plaintiff should be treated as an application for an adjournment of the hearing. On that understanding, the solicitor for the defendants opposed such application. I determined that the matter should proceed and indicated that my reasons for coming to that view would be set out in my judgment. Those reasons now follow.

To begin with, these proceedings have a long history. The mechanical services which were carried out by the first defendant to the plaintiff’s motor vehicle which form the basis of the plaintiff's complaint were carried out in 2020. The amount in issue is $9,017.00.

The plaintiff's initial application to the NSW Civil and Administrative Tribunal was filed on 7 September 2020. It was heard on 12 January 2021 and on 15 January 2021 an order was made in favour of the defendants by Tribunal Member Hennings.

The plaintiff then filed an application for an internal appeal which was heard by the Panel on 3 May 2021. The Panel reserved its decision and delivered judgment on 29 October 2021 in favour of the defendants. [6]

The proceedings in this Court were commenced on 24 November 2021. Since that time, the matter has been before the Registrar on several occasions, and before me on several other occasions, for directions. The present notices of motion which are before the Court were previously listed for hearing. That hearing was vacated in light of my decision to grant the plaintiff’s application for referral for pro bono assistance [7] (such assistance having then been provided to him).

The history of the proceedings aside, the information provided by the plaintiff in respect of his admission to hospital was bereft of any detail, and any probative supporting documentation. The plaintiff did not respond to my request for the provision of a medical certificate which, in the normal course, would be expected to contain details of a diagnosis and a prognosis.

In all of those circumstances, I determined that the hearing should proceed. In reaching that determination, I was mindful of the dictates of justice set out in the Civil Procedure Act 2005 (NSW), and of the provisions of s 56(1) and (2) of that Act which are in the following terms:

Having heard submissions made by the solicitor for the defendants, I reserved my decision on the determination of the notices of motion.

On 25 August 2022, my Associate received further email correspondence from the plaintiff which annexed various documents addressing the issue of his health. Those documents included a further certificate dated 23 August 2022 under the hand of Dr Koutsoullis, as well as a discharge summary from the Canterbury Hospital indicating that the plaintiff was discharged from hospital on 18 August 2022, i.e. the day following the hearing. Without going into detail, documents attached to that discharge summary indicated that at least one diagnostic investigation did not detect any abnormality.

I do not propose to set out the entirety of the contents of the plaintiff’s email of 25 August, nor the contents of the numerous other emails which followed it. It is sufficient for present purposes to note that I interpreted such correspondence as incorporating:

The first of those applications should be dismissed for the same reasons which led me to dismiss the two previous applications for my recusal. The basis of the second application was that the plaintiff’s current state of health prevented him from being in a position to deal with the notices of motion. It was explained to the plaintiff that as a matter of procedural fairness, it would be necessary to give the solicitor for the defendants the opportunity to be heard in respect of any application for an adjournment. It was also explained to the plaintiff that in that regard, it would be necessary, as a matter of procedural fairness, to provide the defendant’s solicitor with the medical documentation which had been forwarded to me, given that such documentation was the evidentiary basis for the application. When informed of these matters, the plaintiff made it clear that he objected to any of the medical documentation being provided to the defendants' solicitor. In those circumstances, I re-listed the matter before me on 2 September 2022. The plaintiff was advised accordingly.

When the matter came before me on that date, the plaintiff did not appear, be it in person or virtually. The defendants' solicitor appeared, at which time I appraised her of the general tenor of the plaintiff's most recent correspondence, and explained to her that in view of the objections which had been raised by the plaintiff, such correspondence had not been forwarded to her. The defendants’ solicitor submitted that I should proceed to determine the notices of motion without any further delay.

In all of the circumstances, that is the course that I propose to take. The defendant has been provided with ample opportunity to be heard.

There are two notices of motion before the Court for determination.

The first is a notice of motion filed by the plaintiff on 27 April 2022 seeking orders in the following terms:

The second is a notice of motion filed by the defendants on 31 May 2022, seeking orders in the following terms:

It is appropriate that the defendants’ motion be determined in the first instance. In the event that the defendants succeed in having the plaintiff's proceedings dismissed, the plaintiff's motion will be rendered otiose.

The defendants’ motion was supported by an affidavit of Mark Gary Henry of July 2022. [8] However, all relevant evidentiary material was contained in a Court Book which was prepared pursuant to previous directions made by me for the purposes of facilitating the hearing of the notices of motion. [9] Some of the material contained in that Court Book (such as the transcript of the proceedings before the panel) was provided by the plaintiff himself. But for the outline of submissions of the defendants (which were provided to the plaintiff on 16 August 2022), I am satisfied that the entirety of the material in the Court Book was in the plaintiff’s possession by 20 July 2022, almost one month prior to the hearing. [10]

The factual background to the plaintiff’s proceedings was summarised by the Panel in its reasons: [11]

Contained within Exhibit A is a transcript of the hearing which took place before the Panel, at which all parties were self-represented. In light of some of the grounds of appeal on which the plaintiff now seeks to rely, it is necessary for me to set out a number of extracts from that transcript.

At the commencement of the proceedings, the Senior Member said the following: [12]

After confirming compliance with various procedural requirements, the Senior Member continued: [13]

In response to those opening statements, the plaintiff said: [14]

The Senior Member then confirmed that the plaintiff was making an application for the hearing to be adjourned. [15] On a fair reading of the transcript, the Panel then allowed the plaintiff the fullest possible opportunity to articulate the bases of his application. [16]

Having given the plaintiff that opportunity, the Senior Member said: [17]

The plaintiff's submissions then continued, in the course of which the following exchange took place: [18]

The exchange then continued: [19]

Further exchanges between the plaintiff and the Senior Member continued over the next seven pages of transcript. They included the following: [20]

Over the next four pages of transcript, [21] the plaintiff addressed the Panel without interruption, following which the Senior Member sought clarification of a number of matters. [22]

The representative of the first defendant was then permitted to address the Panel in relation to the plaintiff's application for an adjournment, which was opposed. [23]

After standing the matter down for a short period, the Panel reconvened at which time the Senior Member said: [24]

The following exchange then took place between the Senior Member and the plaintiff: [25]

The representative of the defendants indicated to the Panel that he wished the matter to proceed, and submitted that the Panel should uphold the decision at first instance. [26] When given the opportunity to address the Panel in reply, the plaintiff said the following: [27]

The Senior Member responded [28] by indicating that the Panel would reserve its decision. The decision was delivered on 29 October 2021. I have set out the relevant parts of the Panel’s reasons below when addressing the various grounds of appeal.

The primary relief sought by the defendants is that the plaintiff’s proceedings be dismissed pursuant to r 13.4(1)(b) of the rules. Rule 13.4 is in the following terms:

The authorities emphasise that in order to dismiss proceedings on the basis relied upon by the defendants, the absence of any cause of action must be very clear. In Cox v Journeaux (No. 2) [29] Dixon J (as his Honour then was) emphasised that the power to dismiss proceedings is to be exercised only when the action which has been brought is clearly without foundation. His Honour expressed similar views in Dey v Victorian Railways Commissioners. [30]

In its reasons, the Panel said the following: [31]

In the paragraphs of the reasons which followed, the Panel considered the grounds relied upon by the plaintiff, and concluded [32] that no question(s) of law were raised.

The plaintiff submitted that the panel:

Section 36 of the NCAT Act is in the following terms:

This ground of appeal does not raise any question of law. The reasons of the Panel make it abundantly clear that the plaintiff's case was considered in full, and that the Panel proceeded in accordance with s 36 of the NCAT Act.

I have previously set out parts of the transcript of the proceedings before the Panel which contain several exchanges which took place between the plaintiff and the Senior Member of the Panel during the hearing. Those exchanges are relevant to the determination of this ground.

The plaintiff submitted that:

Sections 38(5) and (6) of the NCAT Act are in the following terms:

This ground of appeal does not raise any question of law. It will be evident from the extracts from the transcript of the proceedings before the Panel set out above that the plaintiff’s various complaints about the Panel’s conduct of the proceedings are entirely untenable. On any view, the plaintiff was given a full opportunity to be heard and present his case.

Under the heading “The balance of the grounds of appeal” the Panel said the following: [33]

The plaintiff submitted that:

Section 12 of the MDRA is in the following terms:

Section 33A of the MDRA is in the following terms:

This ground of appeal does not raise any question of law. There was no error on the part of the Tribunal in its interpretation of s 33A of the MDRA. The Panel correctly concluded that even if the defendants were not licensed at the time that the repairs were carried out, that did not lead to a conclusion that the plaintiff was entitled to relief. In doing so, the Panel correctly drew a distinction between the consequences of a breach of a punitive provision per se (such as s 12 of the MDRA) and the consequences of such a breach in civil proceedings between relevant parties.

Further, given the Panel’s comprehensive reasons, the proposition that the Panel failed to properly take into account the matters raised in respect of the MDRA during their deliberations is without substance.

In its reasons, [34] the Panel noted that a finding had been reached at first instance that the evidence did not establish that the defendants had breached the Australian Consumer Law. The Panel concluded that on the available evidence, the defendants had carried out the required repairs with due care and skill, and in a proper manner. The Panel then said: [35]

The plaintiff submitted that the defendants had deliberately mislead him into believing that they were licensed motor vehicle repairers at the time they were repairing his motor vehicle, when in fact this was not so.

The provisions of s 18 of the Australian Competition and Consumer Act 2010 (Cth) relate to the issue of meetings of the Australian Competition and Consumer Commission. It is difficult to ascertain how it is asserted (in ground 4) that the Tribunal erred in law when it failed to address that provision. Ground 4 does not raise any question of law.

Further, the finding of the Panel was that there was insufficient evidence to establish that plaintiff was entitled to any relief was a factual finding. Ground 5 does not raise any question of law.

For the reasons set out, no questions of law have been identified by the plaintiff in any of the proposed grounds of appeal. It follows that the proceedings disclose no reasonable cause of action and should be dismissed. In these circumstances, the plaintiff's notice of motion does not need to be considered.

I make following orders: