Batshon v Suttons Motors Homebush Pty Limited

Tribunal's Decision

1. Relevantly, the Tribunal in its Reasons, found: 9. I specifically asked the applicant what evidence he relied upon to prove the defects. He referred to the two invoices from the respondent dated 13 April 2023 and 25 May 2023 which noted some repairs. The applicant also referred to an email from the respondent at page 27 dated 18 May 2023 in which it is stated by the author of that email (Mr Berger) that "Everyone agrees that its quite a hard pull when it corrects you and you do tend to fight with it, but we can trouble shoot by playing around with the settings apparently". The applicant also referred to a photo of a blank radio screen at page 30. The applicant also referred to some Internet research. 10. The respondents have filed no evidence, just submissions. They have not provided any diagnostic reports or reports of their own mechanics or of a third party mechanic. However the onus of proof does not lie with the respondent; it lies with the applicant. The applicant has the burden to establish his claims against each of the respondents. The applicant has not provided any expert evidence to establish the defects. He has provided a written quote for a suspension repair, but this is not a report of what the issues are with the suspension. Also, the applicant said he was not pressing the issue of the suspension. The applicant ought to have obtained technical or expert evidence to establish the current defects and that the defects constitute a major failure of the consumer guarantees to qualify for the remedy of a refund as opposed to a repair or replacement order, neither of which the applicant sought. I find that the applicant has not discharged the burden of proof and the claim on the evidence fails. [Our emphasis]
2. The Tribunal dismissed the appellant's claim.

Grounds of Appeal and Appellant's Contentions

1. The appellant filed his Notice of Appeal on 22 November 2023. The appellant accepted that he may require leave to appeal and contended that the Tribunal's decision was not fair and equitable because: 1. The Tribunal was in error in dismissing the claim because the appellant failed to provide independent expert evidence when he had video evidence of the alleged faults; 2. Obtaining expensive expert reports is financially prohibitive; 3. The respondents had an obligation to rebut the complaint once it was made by the appellant; 4. The appellant remains without refund and compensation for the defective motor vehicle.
2. The appellant also contended that he was not afforded procedural fairness due to the late filing of the respondents' joint submissions which included submissions that he could not meet.
3. The appellant contended that the Tribunal should have given more weight to the following evidence: 1. Email correspondence passing between him and the two respondents explaining the alleged failures with the motor vehicle; 2. Photographs and videos evidencing the alleged faults; 3. Weighbridge dockets and articles showing known similar defects with the particular motor vehicle model.
4. The appellant also sought to rely on the following new evidence in the appeal: 1. Photographs and videos of the alleged failures with the motor vehicle, taken by the appellant's apprentice, essentially depicting the purported failure of the in car screen, reversing camera view and the pulling/failure of the lane assist function; and 2. an unsigned and undated diagnostic report; 3. a two page mechanics report dated 21 November 2023 relating to an assessment of the suspension and shock absorbers of the motor vehicle.
5. The appellant contended that the Appeal Panel should give "weight" to the new evidence.
6. Before the Tribunal and in this appeal, the appellant claimed a full refund of $72,788.20 against the first respondent and $20,000 against the second respondent for alleged breaches of the statutory warranties contained in the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010) ('ACL'). It is not in dispute that the Tribunal had jurisdiction to determine the appellant's claim pursuant to Part 6A of the Fair Trading Act 1987 (NSW).

Reply to Appeal and Respondents' Contentions

1. The second respondent lodged a Reply to Appeal on 1 December 2023. The Reply to Appeal sought orders upholding the Tribunal's decision.
2. The respondents jointly contended before the Tribunal and in this appeal that: 1. The appellant was successful in his application to exclude parts of the late submissions filed by the respondents, resulting in no procedural unfairness; 2. The appellant had ample opportunity to obtain expert evidence to prove his complaints but failed to do so; 3. No error is identified in the Tribunal's decision to dismiss the claim on the basis that there was no expert evidence relied upon by the appellant to prove his complaints; 4. Leave to appeal should be refused as the decision was fair and equitable and not against the weight of evidence; 5. No objection is taken to admitting the additional evidence of the photographs and video of the alleged faults, as these were not available at the time of the hearing before the Tribunal; 6. The appellant should not be allowed to rely upon the additional evidence of a diagnostic report and mechanic's report, as these documents were available at the time of the Tribunal hearing and the appellant has not provided a reasonable explanation as to why they did not form part of his evidence.

Statutory Grounds for Appeal

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel.
2. An internal appeal is not an opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (BKB Motor Vehicles), the Appeal Panel said at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exclusive list of questions of law including whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, whether the Tribunal identified the wrong issue or asked the wrong question, whether the wrong principle of law had been applied, and whether the Tribunal failed to consider relevant (i.e., mandatory) considerations.
4. Where, as in this case, an appellant is self-represented and not legally trained, it is appropriate for the Appeal Panel to review the grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged, to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].
5. In the absence of any question of law raised by an appeal, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act.
6. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a "substantial miscarriage of justice" on the basis that: (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).
7. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a "substantial miscarriage of justice" for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
8. 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.
9. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.
10. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Errors of Law

1. We have had regard to the matters relied upon by the parties, including the written submissions and evidence lodged by the appellant on 10 and 29 January 2023 and by the second respondent on 30 January 2023. We have also considered the parties' oral submissions at the hearing of the appeal and the findings made by the Tribunal. We are satisfied, for the reasons set out below, that the appeal does raise questions of law and that leave to appeal is not required in that regard.
2. A close reading of the grounds of appeal reveals two questions of law: first, whether the appellant was afforded procedural fairness because he could not respond to the late filing of submissions by the respondents; secondly, that the Tribunal applied a wrong principle of law in finding that the appellant had an onus to tender expert evidence to establish a defect or fault.

Procedural fairness ground

1. Section 38 of the NCAT Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness.
2. We have concluded that there was no breach of procedural fairness, as identified by the appellant, and no error of law for the following reasons.
3. The appellant contends that the Tribunal failed to accord him procedural fairness in allowing a late joint submission filed by the respondents. It is not in contest that the respondents filed a submission on 14 November 2023, after the Tribunal's order requiring that material to be filed by 3 November 2023. The appellant contends that he was at a significant disadvantage in the circumstances.
4. At the Tribunal hearing the appellant objected to the respondents' submissions being relied upon. The Tribunal upheld the appellant's objection but only as to particular parts of the submissions that the appellant contended caused him prejudice (see 4(b) of the reasons for decision).
5. In the appeal, the appellant accepted that parts of the submission had been rejected by the Tribunal. The appellant was not able to identify in the appeal which additional part of the submission was prejudicial and how he was not accorded procedural fairness.
6. The respondents both contended that the Tribunal correctly excised those sections of the submission which the appellant said caused him prejudice. In doing so, the remainder of the submission that was relied upon by the Tribunal did not amount to any procedural unfairness.
7. An appeal in respect of an allegation of procedural unfairness will only be allowed where an appellant can demonstrate some practical injustice. That is, the error must be "material," reflecting the fact that the concern of the law in the context of procedural fairness is to avoid practical injustice: Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399 at [52].
8. We find that the Tribunal considered the appellant's objection to the respondents' relying upon the late submission and any prejudice or disadvantaged that may flowed to the appellant. In doing so, the Tribunal rejected that part of the submission which the appellant identified as being prejudicial. The Tribunal's finding in this regard is found at [4(b)]. We find there was no procedural unfairness in that approach.
9. This ground of appeal fails.

Did the Tribunal apply a wrong principle of law?

1. The second error of law ground primarily concerns the Tribunal's finding at [10]: "…However the onus of proof does not lie with the respondent; it lies with the applicant. The applicant has the burden to establish his claims against each of the respondents. The applicant has not provided any expert evidence to establish the defects. … The applicant ought to have obtained technical or expert evidence to establish the current defects and that the defects constitute a major failure of the consumer guarantees …"
2. The appellant contends that the Tribunal applied the wrong principle of law in finding he failed to establish his claims by not providing an expert report, and therefore, he did not meet the burden of proof.
3. The appellant contends that the Tribunal put him to an unreasonable burden of proof in requiring him to have an expert report, and in so doing it failed to consider his lay evidence, namely photographs, videos, emails and statements concerning the faults. He contends that his lay evidence was sufficient evidence required to substantiate his claim. In doing so, the respondents had a duty under the ACL to further investigate the fault(s) and remedy the situation.
4. The Appeal Panel has previously discussed the requirement of parties obtaining expert evidence where one party has a strict legislative duty. For example, in the realm of strata law, strict duties to maintain and repair, including as required to renew or replace, common property, exist under legislation such as s 106(1) and (2) of the Strata Schemes Management Act 2015 (NSW). In short, the Appeal panel has previously considered where there is a strict duty of a party imposed by legislation, expert evidence is not always required to be obtained by a claimant - (see Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17 ('Selkirk') discussed in more detail at [42]).
5. In this appeal, the appellant has identified and brought to the attention of the respondents(s) various fault(s) with the motor vehicle and he seeks redress under the ACL. The question for our consideration is whether the Tribunal incorrectly found that the appellant had to take a further step and obtain expert evidence to establish the defect/fault(s).
6. In Selkirk at [29] and [42], the Appeal Panel found that expert evidence is not necessarily required in every case: [29] However, we interpolate that the Tribunal further erred in requiring the foregoing matters to be necessarily the subject of expert evidence, although frequently that will be necessary or preferable in the circumstances of the case: cf Mastelltone v Owners SP 87110 [2021] NSWCATAP 188; Carli v Owners SP 56120 [2018] NSWCATCD 55 at [104]. An available inference from the evidence can also arise that is akin to the approach to evidence expounded in Mummery v Irvings PL (1956) 96 CLR 99, [1956] HCA 45 at 116-117, 120-122. [42] While a lot owner will be required, on commonsense principles of causation akin to those in negligence or nuisance, to establish damage to lot property or other loss under SSMA s 106(5) (further discussed on lost rental cited below), certain types of loss such as those claimed in this case will be self-evident from the breach of strict duty admitted or established by its consequences, in this case water entry that rendered premises admittedly uninhabitable and therefore unrentable from the inability to use the bathroom: cp McCue v Owners SP 3844 [2021] NSWCATCD 35.
7. It is not disputed that the provisions of the ACL including its compulsory consumer guarantees apply to the purchase of the appellant's motor vehicle.
8. While this appeal is not to determine the merits of the appellant's claim against the respondents, it is appropriate to identify the appellant's claims and the relief sought by him in relation to various provisions of the ACL, namely, ss 54 and 55, which provide: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality 55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
9. The appellant seeks to return the motor vehicle and obtain a full refund pursuant to s 259 of the ACL, which provides: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging.
10. The respondents deny there has been any breach of the ACL. The respondents also contend that the appellant is unable to return the motor vehicle and obtain a refund, due to the operation of s 262 of the ACL. The respondents submit that the appellant's motor vehicle was involved in an accident and was damaged. They rely upon s 262(1)(c) of the ACL in this regard.
11. It is consistent with the strict nature of the way that the consumer guarantees are expressed in the ACL that the respondents have a strict duty. Once an alleged breach of that duty is established with sufficient evidence, there is an evidential onus on the respondents to refute the conclusion to which the evidence otherwise leads. This is further borne out by the obligations and duty in s 267(2) and (3) and s 271 of the ACL.
12. The appellant identified a range of continuing failures and issues he experienced with the motor vehicle after taking delivery of it. He provided details of those failures, photographs and in some circumstances video evidence. For example, he established that the first respondent undertook some repairs to the motor vehicle on 13 and 25 May 2023. He also relied upon photographs of a blank radio screen and described his understanding of how the lane assist function was not working properly. He returned the motor vehicle to the first respondent whose employees undertook investigations and purportedly corrected/repaired some of the failures. The Tribunal identified the appellant's lay evidence, but it did not in the reasons for decision evaluate that evidence in terms of the appellant's claims under the ACL. Rather, the Tribunal dismissed the appellant's claim on the sole basis that he did not discharge the onus of proof because he failed to obtain expert evidence to "…establish the current defects…".
13. In dismissing the appellant's claim without such evaluation and on the basis that it did, in our view the Tribunal erred in law because it wrongly stated the principle concerning the place of expert evidence. The Tribunal was required to evaluate and consider all of the evidence relied upon by the appellant and assess whether that evidence led to a breach of the ACL consumer guarantees and, if it did lead to a breach, to determine what remedy (if any) was available to the appellant. It did not carry out these tasks. It did not do so apparently because it found that the appellant was required to obtain expert evidence to establish his case.
14. The ground of appeal is upheld.

Leave to Appeal

1. If leave to appeal was required then, having regard to the above principles concerning leave and for the same reasons as already discussed, we are of the view that the appellant may have suffered a substantial miscarriage of justice within the meaning of cl 12(1) of Sch 4 in respect of errors of fact in failing to evaluate the appellant's evidence to determine whether it had sufficient weight, in the absence of evidence from the respondents, to succeed. This was sufficiently central and clear to warrant a grant of leave to appeal and a finding of errors of fact in the basis of the Tribunal's decision.

New evidence

1. As referred to above at [11], the appellant sought to rely upon new evidence. The Appeal Panel when determining whether there may have been a significant miscarriage of justice can grant leave for 'new evidence' to be relied upon that was not reasonably available at the time the proceedings under appeal were being dealt with (see cl 12(1) of Sch 4 to the NCAT Act).
2. We refused leave for the appellant to rely upon the diagnostic and mechanic's reports identified in [11]. This was because that evidence was reasonably available at the time of the Tribunal hearing. The appellant said he simply did not turn his mind to admitting those documents in his evidence. This is not a reasonable explanation for leave to be granted.
3. We granted leave for the additional photographs and videos taken of the failures by the appellant's apprentice. The respondents did not oppose that new evidence being relied upon in the appeal. We were satisfied that the additional videos and photographs were taken after the Tribunal hearing and is evidence of the persisting failures complained of by the appellant.

Remittal

1. Section 81 of the NCAT Act provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes: allowing the appeal; re-determining the matter on the existing evidence with or without any further evidence from the parties; setting aside the primary decision and remitting the whole or any part of the case to the original jurisdiction of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions.
2. A number of central matters of fact and law in the proceedings, particularly in respect of onus of proof, need fundamental reconsideration in light of our findings. Those findings reveal the need in that reconsideration for a significant rethink about the nature of the evidence that the parties wish to lead.
3. It would in our view be very likely procedurally unfair to the parties to determine those matters on the existing evidence. That position would be the case if we re-heard the matter on the evidence put before us, whether or not that was the entirety of the evidence before the Tribunal originally and whether or not it was supplemented by the further evidence we rejected for the purposes of hearing the appeal.
4. There is no advantage from a re-hearing before the original Tribunal because there is likely to be, in effect, a fresh start on expanded evidence in the further hearing. In those circumstances it seems appropriate that the proceedings be remitted to be heard by a Tribunal differently constituted (see Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [121] (5) and (7)).
5. Our orders will accordingly reflect remitter for re-determination before a differently constituted Tribunal.

Additional material filed by the appellant after the appeal

1. The appellant lodged with the registry a letter from the second respondent dated 30 May 2024 referring to the lane changing function. It is not clear that the letter was served on the respondents. For completeness, we state that we have had no regard to material provided by a party after the appeal hearing.

ORDERS

1. We make the following orders: 1. Allow the appeal. 2. Set aside the primary decision dated 20 November 2023. 3. Remit the whole of the proceedings to the Consumer and Commercial Division of the Tribunal for a new hearing by a differently constituted Tribunal upon the evidence already adduced and any further evidence as the Tribunal may allow.

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: 21 June 2024