Ali v Smith

Nature and scope of appeal

1. The decision of the Tribunal below is an internally appealable decision and an appeal can be made from the decision as of right upon a question of law, and otherwise with leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act').
2. As the decision the subject of the appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12)
3. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Grounds of appeal

1. In his Notice of Appeal the appellant challenged the orders made by the Tribunal at first instance and stated his Grounds of Appeal to be: 'I believe that I shouldn't pay for the repair due to the panel beater did a damage to my car the vehicle cannot be registered therefore I want to be paid for the market value of my vehicle or something in return.'
2. The appellant also sought leave to appeal. He stated that the decision was not fair and equitable because his vehicle was damaged and cannot be registered due to the respondent's fault. He also stated that the Tribunal's decision was against the weight of evidence and that there was new evidence now available that was not reasonably available at the time of the hearing.
3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] an Appeal panel stated: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
4. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an Appeal Panel stated at [13]: 'It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially'
5. The following questions of law were identified in Prendergast at [13] citations and quotes omitted: 'Whether there has been a failure to provide proper reasons; Whether the Tribunal identified the wrong issue or asked the wrong question; Whether a wrong principle of law had been applied; Whether there was a failure to afford procedural fairness; Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; Whether the Tribunal took into account an irrelevant consideration; Whether there was no evidence to support a finding of fact; Whether the decision is so unreasonable that no reasonable decision-maker would make it.
6. We will consider the appellant's Notice of Appeal in this way. The appellant is challenging the Tribunal's decision that his claim was rejected and that he was obliged to pay the respondent $2,200.00.
7. We have had regard to a number of relevant issues in connection with this Appeal and the proceedings at first instance. First, there was little evidence filed in the first instance proceedings. As identified by the Tribunal Member, there was a letter from Mr Sami Rayan dated 19 January 2022 which was marked Exhibit A1, and a report titled 'my car inspection' dated on or about 18 January 2022 marked exhibit A2. These documents were not provided on the Appeal.
8. Secondly, the respondent did not file a Reply to the Appeal and the parties did not provide written submissions in support of their respective positions.
9. Thirdly, the Tribunal Member was allocated 90 minutes to hear the evidence and to provide a decision. We have listened to the recording of the proceedings which lasted a little over one hour. In the first instance proceedings, given that the evidence was not extensive, the Tribunal Member obtained an understanding of the background to and the nature and extent of the work carried out by the respondent by asking the parties questions that he considered to be relevant. He was entitled to take this course pursuant to s 38(1) of the NCAT Act which allowed the Tribunal Member to determine his own procedure.
10. Having listened to the recording of the hearing, the following material facts emerged: 1. The appellant purchased two vehicles in 2021. The first was a Toyota Corolla Sedan which was a repairable write-off. The second was a Toyota Corolla Sedan which was a statutory write-off which was unable to be re-registered. The invoices for these purchases were attached to the appellant's application, although the respondent was not provided with copies of them; 2. The two vehicles were provided to the respondent by the appellant; 3. The respondent was requested to replace the quarter panel and beaver panel of the vehicle which was a repairable write-off for an agreed price which was not stated; 4. The appellant was to be responsible for all other repairs; 5. The work was carried out on the vehicle which was a repairable write-off. Parts for the work were obtained from the vehicle which was a statutory write-off, although the fact that the vehicle was a statutory write-off not able to be re-registered was not disclosed to the respondent; 6. The work that the appellant required to be carried out expanded in scope to include the replacement of the boot floor. A new bonnet was also required and provided by the respondent; 7. Due to the expanded work scope, a new price was agreed with the appellant; 8. The respondent was not aware of his obligations under the Motor Dealers and Repairers Act to keep a register of parts or that parts from a vehicle such as the appellant's un- registerable vehicle could not be used in the repair of the appellant's written off, but registerable vehicle; and 9. After the respondent's work was completed, the vehicle was moved to a mechanical workshop across the road from the respondent's workshop for other work to be carried out and then removed from that place without the respondent being paid for his work.

Potential errors of law

1. There are two issues which may be considered as errors of law.
2. The first issue is the fact that the Tribunal did not have the jurisdiction to consider the respondent's cross application because the respondent was a supplier of services, not a consumer for the purposes of Part 6A of the Fair Trading Act 1987. For that reason, the respondent had no standing to commence a consumer claim in the Tribunal pursuant to the Fair Trading Act. This deficiency was not addressed by the Tribunal Member. However we do not regard that as an error of law that would require the decision to be quashed or set aside. The reason for this is that the Tribunal did have jurisdiction to deal with the substance of the respondent's claim under s79O of the Fair Trading Act. That section states: 'In determining a consumer claim wholly or partly in favour of a respondent to the claim, the Tribunal may make any one or more of the following orders that it considers appropriate - (a) an order dismissing the claim or a part of the claim, (b) an order that requires the claimant to pay to the respondent a specified amount of money, (c) an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not.'
3. This section was considered in Buses & 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24 at [96] where an Appeal Panel held that s8(2)(b) of the Consumer Claims Act 1998 (NSW), which was in similar terms to s79O(b) of the Fair Trading Act, was not confined to the determination of a consumer claim itself and authorised an order to satisfy a claim, arising from a consumer claim, that may properly be characterised as a claim made by the supplier. We consider the substance of the respondent's claim to be a claim made by a supplier and amenable to an order under s79O(b) of the Fair Trading Act.
4. On the basis of the plain language of s79O(b) of the Fair Trading Act and the decision in Buses & 4WD Hire Pty Limited v Richardson, we find that the Tribunal Member did have the necessary jurisdiction to make an order in the appellant's application ordering him to pay the respondent $2,200.00.
5. The second issue is the basis upon which the Tribunal Member arrived at the order for $2,200.00. There are potentially two parts to this. The first is that in his reasons the Tribunal Member stated as follows in reaching the conclusion that the appellant should pay the respondent $$2,200.00: 'Section 79U of the FTA requires that in making any orders, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim. The Tribunal notes the Respondent's evidence that it supplied and fitted a new bonnet to the vehicle and this bonnet would have been required by the Applicant and is a benefit the Applicant has received. The Tribunal also notes that the Applicant would have to have the structural components of the vehicle forming part of the sectional repair provided by the Respondent replaced, and that had the respondent brought this to the Applicants attention prior to commencement then the Applicant would have had to acquire replacement structural components from a suitable donor vehicle. In those circumstances the Applicant has still received the benefit of the bonnet at the very least and some work carried out by the Respondent such as the beaver panel. In the circumstances, having regard to the evidence and both matters the Tribunal finds that it would be fair and equitable for the Applicant to pay the Respondent the sum of $2,200.00 inclusive of GST.'
6. Section 79U(1) of the Fair Trading Act states: 'When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim.'
7. Section 79U(1) of the Fair Trading Act is in substantially the same form as s13(1) of the Consumer Claims Act 1998. In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, when referring to the provisions of the Consumer Claims Act and the requirement in s 13(1) to "make such orders as, in its opinion, will be fair and equitable to all the parties to the claim", the Appeal Panel said at [136] and following: 136 If the terms of s 13(1) were thought to require the Tribunal to apply its own notions of fairness and equity when making orders rather than making orders in accordance with the applicable law, that would be an error. The Court of Appeal considered the operation of s 13 in O'Farell v Allianz Australia Insurance Ltd [2015] NSWCA 48 and rejected, at [16], the notion that s 13 of the CC Act required the Tribunal to act otherwise than in accordance with law. 137 Some additional assistance in understanding how the CC Act, and in particular s 13, operated can be gained from the decision of the Court of Appeal in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 (the State Rail Authority Case). In that case, the Court considered the operation of the Consumer Claims Tribunals Act 1987 (NSW), and in particular s 23(1) and (2) of that Act, which were effectively re-enacted as ss 8 and 13 of the CC Act in 1998. 139 In the State Rail Authority Case, the remedial provisions of the legislation that was the predecessor of the CC Act were explained by Hope JA (with whom Samuels and Clarke JJA agreed) as follows, at 478 - 9: "the [Consumer Claims Tribunal] exercises judicial powers. It has to resolve whether the claimant has made out a right to relief according to the general law, and if he has, then the court [sic] has to decide, in some cases, what order it considers is fair and equitable to make. In other cases (including where the claim is to be dismissed) its orders must be in accordance with the general law. Its discretion would seem to be limited to deciding, in appropriate cases, whether to order the payment of a sum of money to a claimant or to order work to be performed or steps taken to rectify a defect in goods or services, or to make orders combining all of these matters. This does not seem to be different in kind from the type of jurisdiction that many "ordinary" courts have to decide, as a matter of discretion, what form of alternative possible forms of relief they should grant. …Whether a relevant right exists must be determined by the tribunal in accordance with the general law; which of the orders which the Act authorises it to make it decides to make is, in some cases, to be determined in accordance with its opinion as to what is fair and equitable. But I do not think that this discretion in any way affects the nature of its decision as to the existence or absence of the claimant's right. The claimant does not simply seek relief: he seeks relief upon the basis of a right legally arising out of a contract. … ……Despite the power given to the tribunal to decide to make orders which are fair and equitable, including orders other than for the payment of money (although in due course the claimant may be forced back to such an order), the tribunal cannot fix the amounts of the payments or determine the nature of the other acts to be performed otherwise than on the basis of the evidence before it and the contractual rights and obligations of the parties; the tribunal does not exercise "palm-tree justice". It is a court exercising judicial power, with the duties upon it and the consequences to the parties that such a power and the exercise of it involves. It is a jurisdiction which can, within its prescribed limits, be regarded as a jurisdiction of a court to resolve issues arising under contracts for the supply of goods or services.
8. Having regard to what was stated in Lam v Steve Jarvin Motors Pty Ltd and the cases referred to therein, we find that s79U(1) of the Fair Trading Act does not in itself provide a basis for a Tribunal Member to make a decision on the sole basis that the decision will be fair and equitable to all the parties to the claim. However after listening to the recording of the proceedings and considering the Reasons for Decision, we have come to the conclusion that the Tribunal Member did not base his decision solely on s79U(1) of the Fair Trading Act and came to his decision after hearing and considering all of the evidence in the proceedings which included the material facts that we have referred to at [21]. We have come to this conclusion reading the reasons fairly and as a whole and without inspecting the reasons with a fine tooth comb attuned to identifying error. Refer, Re Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [147] per Kirby J. and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] - [31].
9. The second aspect of the finding made by the Tribunal Member that may rise to an error of law is that the respondent did not tender evidence at the hearing in support of his claim to be paid $6,050.00. We have had regard to his application which does not break down the amount claimed by reference to separate items of work. We have also listened to the recording of the hearing. We find that there was no evidence given at the hearing about how the amount of $6,050.00 as claimed by the respondent was calculated or how the amount of $2,200.00 as found by the Tribunal Member might be supported.
10. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6 Mason CJ stated at [87] authorities omitted: 'The question whether there is any evidence of a particular fact is a question of law: Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.'
11. Also, at [89] his Honour stated: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.'
12. Given that the Tribunal Member asked questions and obtained evidence or probative material regarding the background to and the nature and extent of the work carried out by the respondent and the amount claimed for that work, we are of the view that there was no error of law in him making a determination that the respondent was entitled to recover the sum of $2,200.00 for the work he carried out. This determination was made in circumstances in which the parties provided scant evidence and in which the Tribunal Member was allocated little time (90 minutes) to hear all of the evidence and to produce his decision.
13. In Tuck v White [2016] NSWCATAP 132 an appeal panel considered a case in which the appellant at first instance sought an order that she did not have to pay the respondent $2,877.60 for work that he carried out at her residence. She was unsuccessful as the Tribunal ordered her to pay the respondent $2,327.60 in instalments. Her appeal against that decision was unsuccessful. In the proceedings at first instance the Tribunal considered her expert's evidence of the cost of rectifying defective work and found that this evidence was not of great assistance. The Tribunal Member then assessed the amount of time and cost to carry out the identified rectification work by reference to the original quotation and concluded that a deduction of $550.00 should made from the amount otherwise payable to the respondent. The Tribunal then made an order in favour of the respondent in the sum of $2,327.60 pursuant to a section of the now repealed Consumer Claims Act which is in similar terms to s79O of the Fair Trading Act.
14. One of the appellant's grounds of appeal was that the Tribunal Member was not qualified to make an assessment of the amount of damages in respect of the defective work as found. The Appeal Panel rejected this submission stating at [47] and [48]: 'However, the Tribunal also had before it evidence in the form of the original contract and evidence from the respondent as to the cost of carrying out the original work and evidence from the respondent as to the estimate of time to fix the various defects identified. These findings are recorded in the decision at [41]. The Tribunal used these facts to provide an estimate of the loss suffered by reason of the respondent's breaches so as to make an assessment of the deduction to be made from the unpaid contract sum and thereby determine what award was fair and equitable as required by s 13 of the CC Act. In our opinion, this was both a proper and reasonable basis to assess the deduction to be made from the unpaid contract sum for the defects as found by the Tribunal. As is clear from the authorities to which we have referred above, the fact there is some estimation involved does not mean that the Tribunal erred in law in fixing the amount of the deduction at $550.00. Insofar as the appellant challenges the fact that the proper allowance is $550.00, the appellant must obtain leave to appeal the assessment. This requires the appellant to demonstrate that she may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of the evidence.'
15. Although the facts in Tuck v White are different to the facts in this appeal, we think that the principles to be applied are essentially the same. The Tribunal will be entitled to estimate amounts owed or the value of defective work where there is no precise evidence before it as regards those items, provided that there is sufficient evidence upon which the estimate can be based.
16. There are also the authorities that state that a court or tribunal must do the best it can in making an award of damages, or is entitled to make a 'guestimate' in making an award of damages. In Fink v Fink [1946] HCA 54; (1946) 74 CLR 127, Dixon and McTiernan JJ stated at 143 'Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.'. In Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303, Menzies J went so far as to say as a general proposition that the 'assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation': at p 308.
17. While principles as referred to in the preceding paragraph are applicable to an assessment of damages, we are of the view that they are equally applicable to the Tribunal making a finding that part not the whole of an amount claimed, should be paid. We find that there was no error of law in the Tribunal Member determining that the Respondent was entitled to recover $2,200.00 for the work that he carried out.
18. Because the appellant is un-represented, it is appropriate to provide a further explanation of why there is no error of law in the decision appealed against.
19. The appellant was successful in establishing that the respondent was in breach of section 60 of the ACL which required him to provide services with due care and skill. However the appellant failed in his claim because the Tribunal Member found that he did not file evidence of the loss he actually sustained. Nothing has been produced to establish that such finding was wrong. He claimed $20,000.00 in his application which was more than the amount he paid for the two vehicles to which we have referred. At best in our view, his loss would have been the cost to be incurred in having the structural elements which were obtained from the un-registerable Corolla removed. Alternatively he might have produced evidence of the fact that the Corolla on which the work was carried out could not be repaired due to the work performed by the respondent. His loss in those circumstances would represent the loss incurred by the respondent's failure as found by the Tribunal Member to make inquiries with him as to the source of the structural components for the sectional repair before commencing the work.
20. The respondent was not responsible for the cost of the un-registerable Corolla as it had been acquired without his involvement. He also would not have been responsible for the cost of new or replacement parts as those were always the responsibility of the appellant, as was the cost of having suitable parts installed into the registerable Corolla. The other costs incurred by reason of the respondent's breach of s60 were the costs of doing the work which was found to be in breach of s60. The Tribunal Member found that those costs were not payable in making the order that the appellant did not have to pay the respondent $3,850.00. As explained above the Tribunal Member had the power to award the respondent an appropriate amount for the work performed which was not in breach of s60, which he did by his order that the appellant pay the respondent $2,200.00.

Not Fair and equitable

1. The appellant seeks leave to appeal on the basis that the decision was not fair and equitable because his vehicle was damaged and cannot be registered due to the respondent's fault.
2. This ground of appeal relates to the way in which the hearing was conducted, not the appellant's subjective view that the decision was not fair and equitable. In Collins v Urban an Appeal Panel said at [77] that: 'If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable"
3. We note that the appellant has put no evidence before the Appeal Panel that would demonstrate an award of $2,200.00 for the bonnet, the beaver panel, and associated labour cost is not fair and equitable or was manifestly excessive. The appellant has not persuaded us that there was a failure to provide procedural fairness or that the decision was not fair and equitable.
4. We refuse leave to appeal on the ground that the Tribunal decision was not fair and equitable.

Against the weight of evidence

1. The appellant also seeks leave to appeal on the basis that the Tribunal decision was against the weight of evidence. He has referred to the evidence that he provided to the Tribunal at first instance. However he has not filed that evidence in the Appeal despite being ordered on 9 March 2022 to lodge with the Tribunal (Appeal Panel registry) 'all the evidence given to the Tribunal below on which it is intended to rely'.
2. In Collins v Urban the Appeal Panel explained at [77] in connection with this ground for leave that: '77. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: ….(2) The decision under appeal can be said to be "against the weight of evidence" … where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].'
3. The basis of the Tribunal Member's decision to reject the appellant's claim lay in the fact that the appellant had not produced any evidence to substantiate his loss, stating: 'However the Applicant did not pay for the services and there was no evidence before the Tribunal of any damage suffered by the Applicant, other that the cross claim brought by the Respondent seeking payment of the sum of $6050'
4. Given that we have not been provided with the evidence which the appellant relied on at first instance, we are unable to make any finding that his evidence in its totality preponderated so strongly against the conclusion found by the Member that the conclusion was not one that a reasonable Tribunal Member could reach.
5. We refuse leave to appeal on the ground that the Tribunal decision was against the weight of the evidence.

Significant new evidence is now available

1. The appellant seeks leave to appeal because significant new evidence is now available that was not reasonably available at the time of the hearing. He has provided a Car History Report & PPSR Certificate which was generated on 21 February 2022, the date of the hearing.
2. Appeal Panel cases concerning leave to appeal on this ground were considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. That decision and the authorities referred to, establish at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing, the test is whether the material the appellant now seeks to rely upon was unavailable because "no person could have reasonably obtained the evidence", not because the appellant was unaware of the need to do so.
3. The appellant has not provided submissions or evidence to establish that it was not possible to obtain the Car History Report & PPSR Certificate generated on 21 February 2022 in time for the hearing. This ground for leave to appeal, does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
4. The appellant has not established that leave to appeal should be granted because significant new evidence is now available that was not reasonably available at the time of the hearing.
5. The application for leave is rejected on this ground.

Disposition of the Appeal

1. The appellant has not persuaded us that there were errors of law in the Tribunal Member's decision. Nor can we find errors of law. The appellant has also failed to persuade us that leave to appeal should be granted. We make orders that: 1. Leave to appeal refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2022