Ayoub v CPT Corp Pty Ltd

NCAT Appeal Panel|2015-10-07

Representative: Thi My Huong Trinh and Huu Phuoc Le (by leave for the respondent) File Number(s): AP 15/38986 Decision under appeal Court or tribunal: Civil and Administrative Tribunal (NSW) Jurisdiction: Consumer and Commercial Division Date of Decision: 21 May 2015 Before: F Holles, Tribunal Member File Number(s): HB 15/08549

Background

The respondent carried out residential roofing works, in connection with a carport and awning at the appellant's home. The appellant was dissatisfied with the work and contended as follows: there was water leakage; the dimensions of the constructed works were different from that shown on the sketch plans provided by the respondent; and the work had not been carried out in a proper and workmanlike manner.
The appellant lodged a complaint with the Home Building Service of the Department of Fair Trading. The senior building inspector determined that the work had been done in a proper and workmanlike manner, despite agreeing with the appellant that the dimensions of the constructed works were marginally different from that shown on the sketch plans provided by the respondent.

Interlocutory orders and representation at first instance

The appellant filed an application to the Consumer and Commercial Division, Home Building List of the Tribunal. When the matter came on for directions on 24 March 2015, orders were made for the provision of evidence. The Tribunal ordered that the "applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 3 April 2015". The note defined the expression "document" to include witness statements, statutory declarations or affidavits, expert reports, photographs, accounts or receipts, quotations and any other document to be relied upon. The respondent did not appear at the directions hearing, nevertheless, the Tribunal made similar orders for the respondent to file and serve its evidence by 15 April 2015.
The appellant (the then applicant) filed her documents in accordance with the orders. The documents were provided by way of a report from MP Roofing Services Pty Ltd (MP Roofing). The report outlined the alleged defects to the work, recommended rectification works and provided an estimate of the cost of those works. No evidence was filed by the respondent. No request for cross-examination of the appellant's witness was made.
At the hearing at first instance, the appellant was unrepresented. The appellant is legally blind and English is not her first language. Her daughter was present to assist her, although her daughter did not appear for her. There was also an interpreter present.
The respondent was represented by Mr Robert Lee who is a licensed building supervisor for the respondent and was responsible for supervising the works the subject of the dispute. Also present was Mr Phillip Le, a director of the respondent.
The Tribunal affirmed those present at the hearing and invited the appellant to present her case.

The appellant's case at first instance

The appellant primarily relied upon the report of MP Roofing. This report, in essence, indicated that the primary problem with the work was that the roof sheeting had been "pan fixed with metal tek screws". The author of the report, Michael Pagliuca, expressed his opinion that roof sheeting should only be "crest fixed and not pan fixed". He also noted that poor sealing and detailing were other factors that may have contributed to the leak. He identified several other defects such as the gutter and downpipe creating a slip hazard and poor installation and detailing of newly fitted cladding over the boundary fence, resulting in work not of tradesman quality. In addition to relying on the report by MP Roofing, the appellant gave oral evidence and answered questions from the Tribunal. In her oral evidence, the appellant said that the work had not been done properly, the roof was shorter than it ought to have been and it was leaking.
The Tribunal then invited the respondent, through his representative Mr Lee, to cross-examine the appellant. Mr Lee did not have any questions for the appellant, but the Tribunal put some questions to the appellant. In particular, the Tribunal asked what the appellant thought was wrong with the construction and why she disagreed with the report from Fair Trading. The appellant reiterated that it was because the work had not been done well, the roof was leaking and the dimensions were short. She also noted that when it rains she must turn off the electricity as it becomes dangerous. The Tribunal asked her whether she had considered calling the author of the report to give evidence and she answered that she had not.

The respondent's case at first instance

The Tribunal then invited the respondent to present its case, which it did through Mr Lee. He stated that the carport and awning industry recommend pan fixing and that the job had been done according to the manufacturer's specifications. He further stated that the particular roof sheeting used in this case was known as "Stratco Superdek" and he tendered two brochures. These brochures apparently stated that the manufacturers of Stratco Superdek recommended pan fixing for carports, awning and verandahs. Mr Lee criticised the expert's report provided by the appellant, contending that had he been experienced in the carport and awning business, he would have known that pan fixing was appropriate. As an aside, it is noted that the brochures tendered at the hearing were not before the Appeal Panel, but this being an appeal on a question of law, nothing turns on this.
The respondent submitted that the likely cause of any damage or lack of integrity to the roof would have been caused by the electrician climbing on the roof, after the respondent had completed its work. This was based on the respondent's further submission that the roof supports were not strong enough to support the electrician.

Objections to evidence

During the course of the hearing, the Tribunal Member indicated that he would have regard to the manufacturer's brochures tendered by the respondent. At this point, the appellant's daughter raised the issue of procedural fairness, noting that any documents were required to have been served pursuant to the Tribunal's order and that this had not been done. The Tribunal proceeded to consider whether or not to allow the tender of the brochures and determined that as the evidence was relevant, the brochures ought to be admitted. Seemingly in the context of determining the objection to evidence, but possibly for a more general purpose, the Tribunal Member noted that the appellant's expert had not identified his expertise or his technical qualifications, making it very difficult for the Tribunal to assess his evidence in a context where there was a live contest about the appropriate method of fixing the roof sheeting. The appellant's daughter pressed the objection by highlighting that had the appellant been served with the brochures before the hearing, in accordance with the Tribunal's orders she may have been able to ask the appellant's witness to reply in order to clarify certain things and she would have had an opportunity to ask him to appear at the hearing.
The Tribunal Member offered the appellant five minutes to try to find an email from her expert, in order to prove his qualifications. However, the Tribunal did not offer an adjournment more generally.
The Tribunal concluded that the appellant had not been ambushed with the brochures because they were merely brochures from the manufacturers of the roofing material used on the job and concluded that the author of a report which criticises a particular fixing method could have been expected to have looked at the manufacturer's brochures. The brochures were accordingly admitted.

Further progress of the hearing and conclusion at first instance

The hearing proceeded and the Tribunal had regard to some of the photographs contained in the report by MP Roofing. The Tribunal Member asked the appellant to consider the respondent's submission that the electrician had caused the damage, in light of the photos, but was met with the response that the appellant is legally blind and in any event not in a position to address that submission.
The Tribunal concluded by dismissing the claim. In doing so the Tribunal had regard to the report of MP Roofing, but gave it little weight on the basis that there were no details of the author's experience or qualifications and the author had failed to refer to Stratco Superdek and the manufacturer's recommendations. The Tribunal preferred the evidence in the respondent's case. This included the following: the report from the Fair Trading's Senior Building Inspector that the work was done in a proper and workmanlike manner; the evidence of Mr Lee, the works supervisor whose qualifications were in evidence; and the manufacturer's recommendation of pan fixing. The Tribunal accepted Mr Lee's opinion that the problems with the seals were caused by structural damage caused by subsequent electrical work and noted that the photographs in the appellant's own case supported such a proposition. The Tribunal inferred that the roof was not capable of supporting the electrician, thus causing sealing problems. Finally, the Tribunal dismissed any complaint in relation to the boundary fence, as not being work within the terms of the contracts.
The Tribunal was accordingly not satisfied, to the civil standard, that the appellant had established her case.

The notice of appeal

The appellant lodged a notice of appeal under s 80 of Civil and Administrative Tribunal Act 2013 (NSW) (the Act). Even though the appellant ticked the box that stated she was asking for leave to appeal, it was contended at the appeal that leave was, in fact, not necessary because the ground relied upon raised a question of law: whether there was a failure to afford procedural fairness: s 80(2)(b) of the Act. Accordingly, leave to appeal was not pressed at the hearing of the appeal.
A failure to afford procedural fairness raises a question of law: Italiano v Carbone (2005) NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [8]. Section 38 of sub-sec 2 of the Act provides that whilst the Tribunal is not bound by the rules of evidence it nevertheless is subject to the rules of natural justice and ss 38(5) and (6) of the Act also embody aspects of procedural fairness. Of particular relevance is paragraph 38(5)(c) which provides that the Tribunal must take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceeding". Accordingly, leave to appeal was not required.

The parties' submissions

The notice of appeal cited the following factors: that the appellant is legally blind; English is not her first language; she was not represented at the hearing; she filed and served her evidence on time as required by the orders dated 24 March 2015; that the respondent who had not attended the directions hearing did not file or serve any evidence and did not advise that it required the roofing expert for cross-examination; that the respondent was represented at the hearing by Robert Lee who purported to give expert opinion evidence but as he was the supervisor of the company ought not have been allowed to give evidence about work carried out; that an objection regarding denial of procedure fairness was dismissed by the Member on the basis that the evidence was relevant when that was not the question, the question was whether or not notice of the evidence had been given adequately for the appellant to prepare her case; and that a brochure said to be a manufacturer's brochure was handed up at the hearing when the appellant was not able to read it and did not have an opportunity to put that material to her own expert.
At the hearing, the appellant maintained three primary contentions. The first was that the Tribunal Member erred in allowing the evidence from Mr Lee and allowing the tender of the brochures in circumstances where there had been an order for the filing of evidence before the hearing, there had been no notification that the appellant's expert would be required for cross-examination and where the brochures and evidence of Mr Lee were matters that the appellant's expert ought to have been given an opportunity to comment upon. This, it was contended, amounted to a denial of procedural fairness: Kioa v West (1985) 159 CLR 550.
Secondly, it was contended that Mr Lee, who was the supervisor of the respondent's work ought not to have been permitted to give opinion evidence, not being independent. Also, it was contended that Mr Lee ought not to have been allowed to represent the company.
Thirdly, it was contended that on a fair reading of the transcript, it was apparent that the Tribunal was biased. The grounds relied upon were as follows: the Tribunal Member, in effect, cross-examined the appellant when the respondent had declined to do so; the Member asked questions and put photos to the appellant when she is legally blind; the Member made assumptions/inferences about the persons/electricians walking on the roof with no evidence to support that assumption; and from a fair reading of the transcript it would appear to a reasonable bystander that the Member was not impartial and was running the matter on behalf of the respondent: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
In effect, the appellant's contentions may be summarised as follows: the Tribunal failed to abide by the directions given earlier as to the filing and service of evidence; allowed evidence, in the nature of expert opinion, from the advocate for the party and the person responsible for the work; allowed evidence that may properly have been addressed in reply by the appellant's expert, on no notice and in circumstances where the appellant's expert was not required to appear for cross-examination; and that evidence was admitted on the basis that it was relevant, without dealing with the objection on the basis of procedural fairness.
The respondent in essence contends that there was no denial of procedural fairness. The respondent highlights that the type of roofing material used on the job, is specified on some of the contracts. Accordingly, the appellant was not ambushed. The respondent contended that a reasonable expert would have had regard to the roofing material used and had regard to the manufacturer's specifications and therefore identified that Superdek required pan fixing not crest fixing when used for a carport or awning. The respondent contended that the appellant's evidence in chief ought to have dealt with this and therefore there was no procedural unfairness. The respondent contended that as the appellant's expert ought, in chief, to have had regard to the fact that Stratco Superdek was used, there was no ambush.
The respondent also contended that Mr Lee was the supervisor but not the workman and so was entitled to represent the respondent.

Consideration

In Kioa v West, Brennan J said at 611: It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed.
His Honour also pointed out at 612 that: The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
In Miah v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57 McHugh J said at [129]: The critical questions then, are what are the principles of natural justice required in the particular circumstances of this case and has any provision of the Act specifically excluded one or more of them.
We have already above articulated that the Tribunal must accord natural justice and in particular give the parties a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. No doubt, this encapsulates an opportunity for an applicant to respond to a case put by the respondent.
The practical question for the Appeal Panel is whether the appellant had, at first instance, an opportunity to meet the case put against her. Here the respondent's case was that Stratco Superdek was used for the project and the manufacturer's recommendations provided for pan fixing and not crest fixing. The respondent contends that the appellant's expert ought to have addressed this case in chief, as the roofing material was identified in the contract. Accordingly, so the respondent contended, the appellant, in fact, had an opportunity to deal with this and it was not necessary for there to be a right of reply to something that properly ought to have been addressed in the appellant's report in chief.
The respondent's submission has merit. There may be circumstances where the late filing of evidence does not lead to a breach procedural fairness such as where the late evidence does not come as a surprise to the other party, or the other party is otherwise able to deal with it. Nevertheless, this was not such a case. Here, the case against the appellant ought properly to have been put to the appellant's expert and he ought to have been given an opportunity to deal with it. Whilst the expression Superdek appears on some of the contracts, it does not appear on all. Notice of the respondent's case would have occurred naturally had the respondent complied with the Tribunal's direction for filing documents and filed the manufacturer's brochures in accordance with the Tribunal's directions. Further, evidence was given at the hearing at first instance that had the brochures been provided in a timely fashion, the appellant's expert could have been made available for the hearing. We are therefore satisfied that there has been a breach of procedural fairness in the sense that the appellant has not had an opportunity to put her whole case and in particular reply to the case that the respondent advanced.
We also accept the appellant's submission that the Tribunal ought not to have granted leave to Mr Lee to represent the respondent. His evidence was primarily in the nature of expert opinion evidence: i.e., opinion based upon his experience and training. The rule of evidence which provides that opinion evidence (which is otherwise inadmissible to prove the existence of a fact) is admissible where based upon specialised training, study or experience finds its voice, in the context of the Tribunal, in the requirement to accord procedural fairness. An expert's primary duty is to the Tribunal and not as an advocate for a party. This is reflected in the Tribunal's directions in relation to expert evidence. NCAT Procedural Direction 3 relevantly provides as follows: General duty to the Tribunal 11. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 12. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings (including the person retaining the expert witness). 13. An expert witness is not an advocate for a party. 14. An expert witness must abide by any direction given by the Tribunal.
This enables the Tribunal to have confidence that the expert is providing opinion based upon specialised knowledge or training and is not advocating a position. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [56] Heydon J noted that "for generations judges have complained about the partiality of expert opinion witnesses." His Honour also noted (at [59]) the "risk of injustice that may flow from unsatisfactory expert evidence."
Not only was Mr Lee an advocate for the respondent, but he also lacked independence, as he was the supervisor of the work. This further blurred the lines between advocate and expert witness. Whilst we do not go so far as to say Mr Lee's evidence would have been inadmissible merely due to his relationship with the respondent, his evidence ought to have been approached with caution. This would have required scrutiny of his evidence to ensure that his reasoning and assumptions were exposed to the Tribunal and that the links to his specialised training and experience were "spelt out" in order to test his opinion (Dasreef; per Heydon J at [99] and see too at [42] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
We have not found it necessary to decide the appellant's other ground that the Tribunal evinced bias, as the procedural fairness ground is made out on the basis that the appellant was not provided an opportunity to fairly put her case in reply to the respondent's case.
In conclusion, the breach of procedural fairness occasioned has meant that the appellant has not had an opportunity to put her case and the matter is to be remitted to the Tribunal to determine. Orders as to what evidence may be led at the rehearing are a matter for the Tribunal hearing the matter.

Orders 1. Appeal allowed. 2. Matter remitted to the Tribunal to be heard and determined by a differently constituted Tribunal.

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: 03 December 2015

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