This is an internal appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 22 May 2019.
At that time the Tribunal dismissed the appellant's claim for compensation from the respondent. The appellant's claim arises out of the servicing by the respondent of a Hyundai motor vehicle owned by the appellant. The appellant alleged that the respondent had used the wrong engine oil when servicing the vehicle, leading to damage to the engine.
For the reasons below, in so far as it is required we would refuse leave to appeal and dismiss the appeal.
[2]
Background facts and the hearing below
The appellant purchased a Hyundai i20 motor vehicle (the vehicle) on 27 June 2015 from Tynan Motors Pty Ltd.
The vehicle was serviced by the respondent which operated a Hyundai dealership in Cardiff, New South Wales.
The appellant has alleged that there were ongoing problems with the vehicle and has commenced proceedings in the Tribunal against the seller and manufacturer of the vehicle (MV 19/00596). He also commenced separate proceedings against the respondent (MV 19/05429). The two proceedings were listed for hearing together on 22 May 2019. We have been provided with a transcript of the hearing of that day which each party accepts is accurate.
At the commencement of the hearing, it became apparent that some of the material filed by the appellant, including that filed on 13 May 2019 and on which he sought to rely, had not found its way to the file that the Senior Member had with him in the hearing room. Eventually, after debate between the parties and the Tribunal, the proceedings against the seller and manufacturer of the vehicle were adjourned with directions made for the further preparation of those proceedings. The proceedings against the respondent, however, proceeded in circumstances described below.
Following discussions between the appellant, the Senior Member and the respondent, some materials not in the file and on which the appellant sought to rely, were provided to the Senior Member by the appellant. The Senior Member then briefly adjourned to read that material.
On resumption of the hearing, the Senior Member explained the hearing process to the appellant and respondent, including their right to cross-examine witnesses called by the other party. Importantly, at line 312 of the transcript the Senior Member asked the parties if they were ready to proceed, or whether the matter needed to be adjourned for any reason. Mr King for the respondent indicated there was no need for an adjournment and Mr Amos said at line 314: "Ready to go ahead, Senior Member".
Each of Mr Amos and Mr King were sworn and Mr Amos then gave his evidence to the Tribunal as to the circumstances giving rise to his claim. He relied on the expert report of Mr Organ filed on 1 April 2019. Mr Organ was not required for cross-examination by Mr King. As to the alleged damage suffered by the appellant and the claim for $15,800 being the cost to rebuild the engine, Mr Amos relied on what was said by Mr Organ at pages 23-25 of his report. He sought to have Mr Organ expand on what was in his report, but the Tribunal, correctly, noted that his evidence was what was in his report and as Mr King had no questions of him, Mr Organ did not give additional evidence to that contained in his report.
Mr King then put the respondent's position to the Tribunal. He denied that the incorrect motor oil had been used when the vehicle had been serviced. He did not make any submissions about the claim of engine failure (by which we understand him to have said, damage to the engine) because ... "there has been no evidence provided that the engine has failed."
In reply, Mr Amos referred to the vehicle owner's manual in support of his submission that the incorrect oil had been used. He asked again if Mr Organ could be heard to give further evidence. The Senior Member again said that as he was not required for cross-examination his evidence was that in his report.
The Tribunal then retired to consider its decision.
[3]
The decision below
The Tribunal noted that it was common ground that 10W-30 engine oil had been used by the respondent when it serviced the vehicle. It referred to the owner's manual and the evidence of Mr Organ. It found the owner's manual specified that 10W-30 engine oil as used by the respondent, was able to be used in the vehicle. It found that there was no evidence before it that 10W-30 oil should not be used in the engine of the type used in the vehicle. As such, it held that it was not satisfied that the appellant had established that the use of that oil was contrary to the manufacturer's specifications or otherwise negligent.
In respect to any damage to the engine, the Tribunal held that the appellant had not established that any damage had been caused to the engine even if the wrong oil was used. It noted Mr Organ's report said that continued use of incorrect oil would lead to premature failure of the engine and, if that happened, the cost to rectify it would be around $8,000.
[4]
Grounds of appeal
By his Notice of Appeal filed 19 June 2019, the appellant alleges that the findings of the Tribunal :
1. Was not fair and equitable;
2. Was against the weight of the evidence; and
3. Significant new evidence is now available that was not reasonably available at the time of the hearing.
In so far as is necessary, the appellant seeks leave to appeal.
In his submissions dated 22 July 2019, the appellant identified the issues he said arose for determination on the appeal. They were somewhat broader than the matters raised in the Notice of Appeal. The issues were:
1. Whether there was a failure to afford procedural fairness;
2. Whether the Tribunal identified the wrong issue or asked the wrong questions;
3. Whether the Appeal Panel should grant leave to appeal on the ground that the decision was not fair and equitable; and
4. Whether the Appeal Panel should grant leave to appeal on the ground that the Tribunal went about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result.
[5]
Leave to Appeal
We accept that the ground alleging a failure to afford procedural fairness (raised in the submissions but not directly in the Notice of Appeal) raises a question of law (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69). As such, no leave to appeal is required for that ground (see s 80(2) of the Civil and Administrative Tribunal Act (2013) (the CAT Act)).
In so far as the other grounds set out in the Notice of Appeal or the submissions require leave, the requirements for and principles governing leave to appeal are by now well known and need not be repeated: see clause 12 of Schedule 4 of the CAT Act and the explanation in Collins v Urban (2014) NSWCATAP 17. These principles are referred to by the appellant in his submissions. Importantly, the appellant must show that he may have suffered a substantial miscarriage of justice.
Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 of the CAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of the CAT Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The principles referred to and explained in Collins v Urban are relevant to the Appeal Panel's consideration of whether or not to exercise that discretion.
In this case, for the reasons explained below, we do not accept that the appellant has established that he may have suffered a substantial miscarriage of justice. Accordingly, in so far as leave is required, we would refuse to grant leave.
[6]
Was the appellant denied procedural fairness?
The appellant complains that he was refused an adjournment by the Tribunal in circumstances where some of the material filed in the registry by him had not reached the file at the time of the hearing. However, as the circumstances of the hearing described above indicate, the proceedings against the seller and manufacturer of the vehicle were adjourned but these proceedings were not. Whilst the transcript indicates that the appellant originally sought an adjournment of all matters, as it transpired, when the Tribunal had adjourned the other proceedings and asked the appellant and the respondent if there was any need for an adjournment of these proceedings, the appellant said he was "ready to go ahead". As such, we do not accept he asked for but was refused an adjournment of the proceedings.
In so far as the appellant asserts that he was denied procedural fairness by reason of some of his material not reaching the file, the transcript records that the material that the appellant sought to rely on, including the expert report of Mr Organ, was handed to the Tribunal and considered by the Senior Member. That report dealt with the type of oil used and what would happen to the vehicle's engine if the wrong oil was used. It was relied on to support the appellant's case that the respondent had used the wrong oil when servicing the vehicle.
As the Tribunal observed, it was common ground that 10W-30 was the oil used by the respondent. The extracts of the vehicle owner's manual which were in evidence state that this type of oil was one type of oil that was suitable to be used in the vehicle between the temperature range of -10 to +50 degrees Celcius. As such, in ordinary conditions in Australia, that oil could be used. There was no suggestion the vehicle was used other than in ordinary conditions.
The oil in the vehicle was sampled by a company trading as Lubetech and the appellant put a report by it before the Tribunal. That report does not find, as the appellant submitted, that the wrong oil had been used. To the contrary, it specifically states that the sample shows that the oil was 10W-30, albeit with some oxidisation and a higher viscosity than usual. This report did not assist the appellant in proving that the respondent had used the incorrect oil.
During the course of argument before us, the appellant referred to other material filed with the Tribunal on 13 May that he said he should have been able to rely upon at the hearing below. This material dealt mostly with the claims against the seller and manufacturer of the vehicle, including comments by Mr Organ on a report of a Mr Linnett, an expert engaged by one of those parties. That report was not relevant to the appellant's claim against the respondent.
In that material there was also an additional page of the vehicle's owner's manual (page 84). That page says that engine oil "API SF and above" should be used in vehicle. The appellant says the oil used was in his vehicle was 10W-30 SM/CF. He says this is demonstrative of the wrong oil being used. However, that argument ignores the fact that 10W-30 SM/CF oil, so we were told and in so far as the "SM" classification is concerned, is above the "SF" classification (the ratings increasing alphabetically so that SM is above SF). Accordingly, the oil used by the respondent did comply with the specifications in the owner's manual.
It follows, even if all of the material filed by the appellant on 13 May 2019 had been put before the Tribunal (in so far as it was relevant) it would not have altered the result.
Further, we do not accept that there was any unfairness to the appellant by the Tribunal's refusal to allow Mr Organ to give additional oral evidence at the hearing. His evidence was in his expert report. He was not required for cross-examination. If he had been allowed to give additional oral expert evidence at the hearing, there would have been a manifest unfairness to the respondent who would not have had the opportunity to properly consider that new expert evidence and, if necessary, adduce evidence in reply. Even accepting that the Tribunal is not bound by the rules of evidence and proceeds informally, we see no error in it not allowing the appellant's expert to give new evidence at the hearing.
There was no denial of procedural fairness to the appellant.
[7]
Other grounds
The other grounds of appeal can be dealt with shortly. The Tribunal found that, even if the wrong engine oil had been used by the respondent, which it did not accept, the appellant had not proven that the engine in the vehicle had been damaged as a result. That was a finding clearly open on the evidence before the Tribunal.
That finding was based upon the appellant's own expert evidence of Mr Organ. In his report, Mr Organ at C-13 said:
The ongoing use of the engine oil used by the dealership will lead to a premature failure of the engine and the cost to rectify the problem would be approximately $8,000.(emphasis added)
At C-23 of his report, after considering other matters, Mr Organ said:
The approximate costs are around $15,800, and these costs are required because the engine oil used the dealership may has most probable (sic) caused major problems within and without the engine.(emphasis added)
Leaving aside the grammatical difficulties and taking this evidence at its highest, we agree with the Tribunal that it does not prove on the balance of probabilities that the oil used by the respondent has actually caused damage to the engine requiring it to be repaired. The appellant did not rely on any other evidence to prove loss or damage. This is itself enough to dispose of the appeal.
Dealing briefly with the appellant's other submissions; we do not accept that the Tribunal asked itself the wrong questions. Nor do we accept that the decision of the Tribunal was against the weight of the evidence. On the contrary, as is discussed above, it can be seen that the Tribunal considered the material before it and arrived at a conclusion which was clearly open to it on the issue as to whether the respondent had used the wrong oil and, if so, had that caused loss and damage.
We also do not accept that the decision was not fair and equitable. The material relevant to the claim against the respondent was before the Tribunal and considered by it. As we have recorded above, the relevant material that was not in the Senior Member's file, including Mr Organ's report, was handed to the Senior Member who adjourned briefly to read it. As also explained above, the additional material that the appellant said he wished to rely upon would not have changed the fact that 10W-30 engine oil was used by the respondent. This oil was of a type specified in the vehicle's owner's manual.
There was no unfairness caused to the appellant and we do not accept that he may have suffered a substantial miscarriage of justice. For those reasons, in so far as leave is required, we would refuse the appellant leave to appeal.
[8]
Conclusion and orders
None of the grounds relied upon by the appellant have been made out. He has not demonstrated any error by the Tribunal. Our orders therefore are:
1. In so far as leave to appeal is required, leave is refused.
2. The appeal is dismissed.
[9]
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: 18 September 2019