Boman-Peters and Hart v Southern Tablelands Rural Services Pty Ltd

Tribunal's Orders

1. The Tribunal ordered the appellants to pay the respondent the sum of $6,514.50 the subject of invoice #0409 and directed the respondent to undertake a range of rectification works comprising 8 categories of defective works within 3 months of the date of the orders:[118] The appellants have therefore paid the respondent the total sum of $20,848.03 (including the $6,154.50 for invoice #0409).
2. It appears to be common ground that the respondent attended the property to attend to the rectification works ordered by the Tribunal. It was not clear as to whether the appellants were satisfied with the rectification work undertaken by the respondent. However, as we discuss later, one of the appellants' contentions on the appeal was that the rectification work ordered by the Tribunal did not accord with the evidence or the Tribunal's findings in respect of some defective items of work for which the Tribunal did not order rectification.

Grounds of Appeal

1. As evidenced by the Registry stamp, the original of the Notice of Appeal was lodged on 11 March 2022, although the appellants state that it was emailed to the Registry and served on the respondent by email on 9 March 2022. That does not seem to be in dispute, so that we are satisfied that the appeal was commenced within time.
2. The appellants lodged their written submissions on 7 April 2022. The appellants accept that leave to appeal is necessary.
3. The appellants raised several grounds of challenge to the decision of the Tribunal in their Notice of Appeal. For convenience, we have re-formulated the various grounds of appeal as follows: 1. Several items of evidence were overlooked when the Tribunal made its orders for the respondent to remediate defective works. 2. The appellants contend that the Tribunal failed to have sufficient regard to photographic and other evidence depicting other items of defective work, such as incorrect star-picket spacings, the failed electric fence and failed end assemblies. 3. The decision was not fair and equitable because as a professional fencer: 1. the Tribunal should have required the respondent to provide a clear scope of works in any quote or contract that included the standards of installation, the method of installation and the quality and brand of materials to be used; and 2. the Tribunal should have found that the respondent was obliged to address soil conditions, terrain conditions, use quality fencing material, to correct defective works affecting end assemblies, posts and stays, to ensure correct fencing placement and correct defective installation, whether cemented or pneumatically driven in-ground, to ensure the structural integrity of the fence. 1. The Tribunal should have allowed the appellants' evidence comprising a quote for rectification from a fencing contractor located in Canberra, who provided the quote to the appellants on the condition of anonymity, the reason for which was explained to the Tribunal at the hearing. Earlier attempts to obtain evidence from other fencing contractors was both impacted by COVID and a reluctance by local fencing contractors to be involved in legal matters against each other.
4. The appellants sought to adduce new expert evidence that they contended was not reasonably available at the hearing before the Tribunal (for the reasons explained above) and which they described as "critical" to their case. The new expert evidence was a report from Michael McGuiness of "Regional Fencing Solutions" dated 8 March 2022. Mr McGuiness described himself as a fencing contractor of 25 years' experience. He said that he has worked in the Springrange/Wallaroo area and installed various types of rural fencing, including hinge joint, mesh and metal fencing. Mr McGuiness installed 160 metres of hinge joint fencing on the appellants' property on 12 February 2022. We deal with this application to adduce new evidence later in our reasons.
5. The Notice of Appeal did not challenge the Tribunal's order that the appellants pay the respondent the sum of $6,514.50 pursuant to the respondent's final invoice #0409: [121]. The Tribunal observed that the respondent sought payment for that sum pursuant to that invoice in the HB proceedings (at [3]). Correctly in our opinion, the Tribunal found that the respondent could not bring that claim under the FT Act as it was not a consumer for the purposes of such a claim: [61].
6. The Tribunal appears to have made the order for payment of the $6,514.50 pursuant to invoice #0409 under s 79O(b) of the FT Act, although the Tribunal did not expressly state that to be the case. This would also seem to follow from the Tribunal's recognition that the appellants had sought as part of their claim before it, relief from payment of that outstanding invoice pursuant to s 79N(d) of the FT Act. In our opinion, it was certainly open to the Tribunal to make such an order under s 79O(b) of the FT Act that permits the making or an order of a specified sum in favour of a respondent to a consumer claim.
7. While it would have been preferable for the Tribunal to have expressly set out that reasoning process, we do not regard that as an error sufficient to raise a question of law on the appeal because it is apparent on a proper reading of the Tribunal's reasons at [2], [3], [61] and [119] - [121], that the only power to make that order for payment of the outstanding invoice of $6,514.60 is s 79O(b) of the FT Act.
8. In any event, in the appeal, the appellants do not challenge the basis on which the invoice was issued by the respondent, the Tribunal's refusal to relieve them of paying the invoice under s 79N(d) of the FT Act or the consequential order made by the Tribunal requiring them to pay the $6,514.60 to the respondent.
9. The appellants do not directly challenge the Tribunal's dismissal of their primary (consumer) claim under s 79N(a) of the FT Act for payment of $10,030.75 to undertake repairs of the respondent's fencing work. The only orders sought by the appellants on the appeal was for reimbursement of the fee for filing the Notice of Appeal for $52 and payment of $2,970 based on a quote dated 6 March 2022 to engage a fencing contractor to remediate certain works described by the appellants as defective but which the Tribunal did not order the respondent to rectify. Doing our best to understand the way in which the appeal is framed, indirectly therefore the appeal does appear to challenge at least some parts of the Tribunal's dismissal of their claim brought under s 79N(a), and presumably allowing for the respondent's rectification work undertaken since the hearing as directed by the Tribunal, the quantum of that claim is now $2,970 instead of $10,030.75.

Reply to Appeal and respondent's submissions

1. The Reply to Appeal was filed on 16 March 2022. The respondent contended that the appellants were effectively seeking a re-hearing of the matter with new evidence and that no relevant evidence was overlooked by the Tribunal. The respondent supported the decision of the Tribunal "in [its] totality".
2. The respondent also referred to arrangements made at that time with the appellants to rectify the works directed by the Tribunal and that the appellants had paid the respondent in accordance with the orders of the Tribunal.
3. The Reply to Appeal agreed that leave to appeal is necessary and opposed the granting of leave.
4. The Reply to Appeal stated that the respondent does not accept the appeal was lodged within time but does not object to the Appeal Panel extending the time for lodging the appeal.
5. As we have stated above, we are satisfied that the appeal was filed within time by both the lodgement and service by email of the Notice of Appeal on 9 March 2022, with hard copies sent via post and received on 11 March 2022. Even if leave was required, given the short time for which an extension would be necessary and noting the respondent does not object to any extension of time, in those circumstances an extension would have been granted.
6. The respondent's submissions lodged on 20 April 2022 were succinct. In summary, the respondent contended: 1. No question of law arises. 2. The appellants have not identified any issues of fact showing any error by the Tribunal and the appeal has no prospects of success. 3. The appellants have not established how the Tribunal's decision was not fair and equitable or made against the weight of evidence. The appellants were granted an extension of time by the Tribunal to serve their evidence and did not provide evidence to satisfy the Tribunal that all of the work claimed by them was actually defective. 4. The new evidence now sought to be relied upon should not be allowed in the appeal. The proceedings were commenced in February 2021 when the respondent filed proceedings in the Local Court (and then transferred to the Tribunal). The hearing in the Tribunal was in December 2021 and the Appeal Panel should not accept the suggestion that COVID prevented the appellants from finding a suitable expert to provide expert evidence at the hearing. 5. The Tribunal was correct in rejecting the quotation for the scope and cost of rectification work that the appellants sought to rely upon given that the identity of the maker of the document was not disclosed and therefore the respondent would not have been afforded the opportunity to cross examine the maker of that document. 6. The respondent confirmed that it has completed the rectification work ordered by the Tribunal.

Statutory basis of the appeal and the applicable legal principles

1. Section 80(2) of the 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 a re-hearing of the original proceedings or a mere 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. BKB Motor Vehicles was recently endorsed by the Appeal Panel in Weston v Integra Windows and Doors Pty Ltd (Weston) at [42].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 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, and whether the Tribunal failed to take into account relevant (ie, mandatory) considerations.
5. An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)].
6. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40].
7. 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 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered "a substantial miscarriage of justice" on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
8. In the Appeal Panel's decision 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 that was fairly open", that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in pars (a) or (b) of cl 12(1) not occurred or if the fresh evidence under par (c) of cl 12(1) had been before the Tribunal at first instance.
9. Further, even if an appellant from the decision of the Consumer and Commercial Division 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. In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in certain matters. Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken, or where the Tribunal went about the fact finding process 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. Where, as in this case, the appellant is self-represented, it is appropriate for the Appeal Panel to review the stated 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: Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].

Issues on appeal

1. In accordance with the authorities cited above, we have considered the issues raised by the Notice of Appeal and the parties' submissions. In doing so, we have identified several issues for our consideration on the question of whether we should grant leave to appeal. For convenience, we have formulated those issues as set out below (accepting that sometimes there is an overlap in the demarcation of these issues).

Was the decision fair and equitable?

1. In relation to the appellants' contention that the decision was not fair and equitable: 1. Whether the Tribunal made findings with respect to certain items of defective work but failed to make orders for the respondent to remediate those same defective works. 2. Whether the Tribunal should have made findings with respect to the scope of the contract works, including the making of certain implied contractual obligations on the part of the respondent, given his expertise as a "professional" fencing contractor. 3. Whether the Tribunal should have allowed the appellants' evidence comprising a quote for rectification from the unidentified fencing contractor located in Canberra.

Was the decision against the weight of the evidence?

1. In relation to the contention by the appellants that the decision was against the weight of the evidence, whether the Tribunal failed to have sufficient regard to photographic evidence depicting items of defective fencing work, such as incorrect star-picket spacings, failed end assemblies and that it wrongly disregarded the oral evidence given by the appellants in relation to the "failed electric fence".

Application to rely on "new evidence"

1. Whether the appellants should be allowed to rely on "significant new evidence" that is now available that they contend was not reasonably available to them at the time of the hearing. This concerns the new expert report from Mr McGuiness of "Regional Fencing Solutions" dated 8 March 2022.

Findings of defective work not reflected in the Tribunal's rectification orders

1. We have had regard to the Tribunal's findings with respect to those items of defective work about which the appellants contend that the Tribunal failed to make rectification orders.
2. At [92] to [93] of its reasons, the Tribunal found in reliance on a photograph of the end assembly of fence line "M" (reproduced on the appeal as Attachment C, at page 13 of the appellants' submissions), that "the end assembly is not vertical and has allowed wiring and mesh to become loose …" (also see [23]).
3. There are two components to this work at fence line M about which the appellants complain. The first is that the end assembly is not vertical. The second is the loose wiring and mesh.
4. We accept the appellants' submission based on the Tribunal's finding that the Tribunal should have but did not direct the respondent to complete those works when making its orders requiring the respondent to undertake other works pursuant to s 79N of the FT Act in a proper and workmanlike manner (identified at [118(1)-(8)]).
5. Also, a photograph at Attachment N of the appellants' submissions (at page 50) showed an unused hole cut into a strainer post. There did not appear to be any dispute that this photograph was in evidence before the Tribunal and that the hole was made in error by the respondent and the post was not replaced. As submitted by the appellants, this item of defective work was not the subject of the directions made by the Tribunal at [118] to be rectified pursuant to s 79N of the FT Act.
6. The next item raised by the appellants' written submissions concern "failed end assemblies" identified by the Tribunal at [92] and [93] of its reasons. These are therefore the same end assemblies the subject of fence line M and have been dealt with above. In any event, the directions made by the Tribunal at [118(3)] required the respondent to undertake work to "ensure wire ends are cut off at end assemblies". The further submission to the effect that the Tribunal did not make a consequential order to ensure the structural integrity of the fence "if the end posts keep moving" is a different matter because no finding was made that the end posts do keep moving.
7. The last issue referred to above concerns what is really an absence of any finding with respect to allegedly defective work. The issue with which we are dealing here at this part of our reasons is in relation to findings of defective work made by the Tribunal but not reflected in the orders for rectification at [118]. The structural and other issues such as those concerning the spacing of the star pickets, the requisite tension of the wiring and the failure of the electrical fencing are discussed later in our reasons in the context of the appellants' contention that the Tribunal allegedly failed to make findings of defective work having regard to the weight of the evidence.
8. We accept the contention that in respect of fence line M, the end assembly is not vertical and there is loose wiring and mesh. We also accept that there was evidence before the Tribunal of an unused hole cut into a strainer post that the Tribunal did not direct the respondent to replace.
9. Section 81 of the NCAT Act gives us a wide range of powers in dealing with an internal appeal. Given the conclusion that we have reached in relation to those few defective items that were omitted from the orders for rectification, it is open to us to determine it ourselves or remit the matter to the Tribunal for it to determine.
10. However, we are not satisfied that it is possible on the state of the evidence for us to make any determination about these matters. As we discuss in more detail later in these reasons, the appellants rely upon a quote from Mr McGuiness of Regional Fencing Solutions dated 6 March 2022 (Attachment T on page 61 of their written submissions) in support of the contention that the star pickets should have been installed consistently at 3.5 metre spacings. That quote also includes a reference to the items of defective work that we have discussed above, referring to "fixing up the failed end assemblies e.g. adding extra stays" and "replacing the strainer that has a hole in it". As to the former, we have no way of knowing if it includes more than the end assemblies just for fence line M or if it includes realigning the post that was not vertical. As to the latter, it is obviously a reference to the strainer post with the hole.
11. The quote could have but did not identify the specific costs associated with these two items which the appellants say the Tribunal overlooked in its findings for rectification. The quote was dated 6 March 2022 and the Notice of Appeal was dated 9 March 2022 and could have claimed a specific sum for those works to be rectified.
12. The Notice of Appeal sought an order that the respondent pay the appellants the sum of $2,970 for the works the subject of the quote (with no claim for the $1,927.20 for the work actually undertaken and invoiced by Regional Fencing Solutions on 14 February 2022). The quote is presented as a lump sum for labour only (even though one of the items is to "add extra stays" and another is to replace the strainer that has the hole) and it also includes what appears to be considerable other work associated with the "failed electric fencing" and the replacement of the pickets at 3.5 metre spacing.
13. There is no suggestion that the work the subject of the quote has been undertaken and the timing of it suggests it was possibly obtained to assist in the quantification of the appellants' claim in the appeal, which specifically included these two items of defective work.
14. We cannot therefore ascertain an amount that would be referrable to the two items that we have accepted that the Tribunal overlooked and no other costing to repair those items was provided to us. Also, it would seem impractical and undesirable for us to now direct the respondent to attend at the premises and undertake further rectification work after the evidence has established that respondent already undertaken the defective or incomplete work in accordance with [118] of the Tribunal's reasons.
15. The alternative therefore would be for us to remit these discrete matters for a determination by the Tribunal as to their quantum.
16. Having regard to s 36 of the NCAT Act that imposes on the Tribunal and the parties a "guiding principle" to "facilitate the just, quick and cheap resolution of the real issues in the proceedings", we are not satisfied that remitting these very discrete matters for a further determination by the Tribunal would accord with that obligation.
17. The appellants had the opportunity to identify the cost of rectifying these items and did not do so. We are of the opinion that the costs and inconvenience to the parties of a remittal of these discrete issues outweighs the likely quantum with which they are concerned, particularly where having obtained a quote, the appellants have not apparently accepted it or had the quoted work undertaken. Conversely, if the quote was obtained to assist in their appeal, it has not done so in respect of quantifying the cost of rectifying these specific defects.
18. Section 36(4) of the NCAT Act requires the Tribunal to implement procedures in facilitating the resolution of a dispute so that the costs to the parties and the Tribunal "is proportionate to the importance and complexity of the subject matter".
19. As noted in Fletcher-Jones v Avant Garde Logistics Solutions Pty Ltd [2021] NSWCATAP 201 at [25]-[26]: 26. We accept that there is no minimum monetary amount governing when leave to appeal should be granted by the Appeal Panel. 27. However, the quantum of any order is a relevant consideration, due to the requirement on us to implement the practice and procedure of the Tribunal so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act s 36(4).
20. Given our assessment based on the quote of Regional Fencing Solutions dated 6 March 2022, that the cost of rectifying these two items is relatively minor, we would not grant leave to appeal in respect of the Tribunal's omission in dealing with these two discrete items.

Whether the Tribunal should have made findings with respect to the scope of the contract works

1. The Tribunal identified the respondent's quote for the works dated 27 July 2020 at [38] as the written basis of the parties' contract: [63]. The Tribunal found in relation to the quote that it was supplemented by several additional (including oral) terms, as follows: 1. There was no express term as to the particular brand for the 7/90/30 hinge joints: [63]. The only request for a particular type of product to be used was in relation to the Daken Ag white caps: [115] 2. The agreement did not provide for posts to be cemented in-ground rather than pneumatically installed: [90]-[91]. 3. The parties agreed to have the respondent initially erect the fences around the house because the property was being leased and that work could be completed "in the next few weeks". The remainder of the works would be completed within 6 weeks. This was contained in an email from the respondent to the appellants dated 28 July 2020 [64] and found to have been accepted in a reply email from the appellants: [65]. 4. The quote was not set out in the reasons except for an extract from the standard terms set out at [66] to the effect that "no allowance had been made for any obstructions such as rock, concrete, tree roots, broken posts … An additional charge … will be made to cover the costs of drilling or removing such obstructions." 5. The Tribunal found that the appellants directed the respondent in relation to fencing works other than around the house "on the same rates as provided in the original quote": [67] 6. The agreement did not require the star pickets to be evenly spaced. There was no evidence that the appellants agreed to accept the additional costs of evenly spacing the star pickets if costs were to be incurred in removing any obstructions: [106]. The appellants did not provide any specific instructions to the respondent to evenly space the stare pickets: [106]
2. The Tribunal did not directly address whether the "mud map" in evidence before the Tribunal and in the appeal (at page 23 of the appellants' submissions) also formed part of the parties' agreement. It seems that the "mud map" was provided to the respondent [14] and in the circumstances, it is perhaps more accurate to describe it as an aide memoir rather than an express part of the agreement.
3. The appellants also contended, as we understood it, that the Tribunal failed to make findings that there were certain implied contractual obligations on the part of the respondent, given his expertise as a "professional" fencing contractor.
4. In our view, it was unnecessary for the Tribunal to make such findings. As we have set out above, the Tribunal made findings by which express oral terms also became part of the agreement. The Tribunal was also aware of the legal basis on which terms may be implied into a written agreement: [62]. Although the Tribunal only made reference to implied "oral" terms (presumably meaning "express oral" not "implied oral" terms), the principles set out at [62] and the authorities cited therein apply to any implied term.
5. Since this was a consumer claim, the guarantee provisions of the ACL that are incorporated into the FT Act, are imposed on any such written or oral agreement. They override any contract terms (including any attempt to exclude the guarantee provisions) in relation to the provision of goods and services to a consumer. These include statutory requirements, described as "guarantees" that: 1. Goods will be of an acceptable quality - s 54 2. Goods will be fit for purpose - s 55 3. Services will be provided with due care and skill - s 60 4. Services will be provided to ensure fitness for the particular purpose if that particular purpose was made known to the supplier by the consumer - s 61
6. We are not satisfied that the Tribunal made any error by not expressly finding that there were certain implied terms in the agreement between the parties and in their dealings when the Tribunal was clearly aware that it was concerned with a consumer claim under the ACL and FT Act, which required consideration of the guarantee provisions referred to above. While the terms of a contract are relevant to the way the guarantee provisions may be enlivened and applied in a particular context, the appellants' case was at all times a claim brought under the consumer guarantee provisions of the FT Act and not for breach of contract (irrespective of the findings of repudiation made by the Tribunal at [76] and [77] of the reasons).
7. In our view, the findings made by the Tribunal to which we have referred above in relation to the terms of the contract, were sufficient for the Tribunal to make the findings that it did in relation to the scope of works and the nature of those works to be undertaken by the respondent. The Tribunal's findings had regard to those written and express oral terms of the agreement as well as the statutory guarantees in deciding whether work may be incomplete or defective and whether the appellants had established to the Tribunal's satisfaction that the respondent had breached those consumer guarantees.
8. We do not accept that the Tribunal's findings with respect to the terms of the agreement caused its other findings to be not fair and equitable with respect to the agreed scope of works, the nature and extent of the works to be undertaken by the respondent, the timing of those works or those works that were found by the Tribunal to not be incomplete or defective.

Whether the Tribunal should have allowed the appellants' evidence comprising a quote for rectification from the unidentified fencing contractor located in Canberra.

1. The Tribunal observed that the anonymous maker of the quote of 17 April 2021 did not give evidence [29] and that the appellants had not adduced expert evidence in support of their claim that the respondent's fencing work was defective: [78]
2. In our opinion, the prejudice caused to the respondent if the quote was allowed into evidence could not be overcome even if the name of the author of the quote was disclosed only to the Tribunal.
3. Without disclosure of the name of the contractor, his or her expertise and qualifications were impossible to establish or verify. Further, as the respondent submitted, if the quote was allowed into evidence under those conditions, the respondent would have been denied the opportunity of cross examining the author of the document.
4. We are satisfied that in those circumstances, as a matter of procedural fairness, the Tribunal was correct in the exercise of its discretion to disallow the quote. We would add too that having reviewed the terms of the quote set out at [29] of the Tribunal's reasons, even if the quote was admitted into evidence, in the absence of the author being called to give evidence and be cross examined, the quote itself only deals with the cost of rectification works. The quote does not provide evidence and a process of reasoning about whether and in what respects the respondent's works were said to be defective or incomplete pursuant to the consumer guarantees, to require the work the subject of the quote to be undertaken.
5. We reject the appellants' contention that the Tribunal should have allowed the quote for rectification from the unidentified fencing contractor located in Canberra.
6. We are satisfied that the exercise of the Tribunal's discretion to disallow the quote of 17 April 2021 in the circumstances explained above, was correct and that it did not cause the decision of the Tribunal to be not fair and equitable.

Was the decision against the weight of the evidence?

1. As we have set out above citing BKB Motor Repairs at [10], an internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case.
2. The Tribunal observed that the lack of an expert report by the appellants made it difficult to deal with many of the complaints made by the appellants when considering their photographic evidence.
3. The importance of photographic evidence was considered by the Appeal Panel in Marcus v Carroll [2022] NSWCATAP 141 at [15] to [18]. In that case, the Tribunal was found to have overlooked the photographic evidence relied upon by the appellant. Of course, the relevance of any particular photographic evidence must be considered in each case according to its own particular facts and circumstances. The decision of the Appeal Panel does illustrate the weight and significance to be afforded photographic evidence when it is "material" to the issues in dispute.
4. The reasons of the Tribunal show that it did have regard to the photographic evidence of the appellants but said that the "evidence is difficult to follow as [the appellants] rely on photographs with comments however there is no table or index to cross reference the items claimed for rectification. There is no expert report in support of their claims": [82]
5. In our opinion, the reliance by the appellants on the photographic evidence did not always establish the basis on which that evidence was being proffered and often assumed an understanding or a knowledge of matters that was either not apparent from the evidence or would ordinarily have been the subject of an expert report.
6. For example, the appellants' submission in relation to the alleged requirements for tensioning was set out in their written submissions as follows, at [74]-76]: 74. Every manufacturer of wire has a recommended tension to be applied to its fencing wire for it to be purpose proof eg stock. 75. The recommended tension for the product used by the Respondent specifies a recommended tension of 2.0 kN (Attachment R). 76. The photo evidence provided (Attachment C page[s] 3, 5, 7, 10, 11, 13, 15, 16, 17-21) shows that the recommended tension of 2.0 kN is not evident in the fences installed by the Respondent.
7. Another example is the appellants' contention with respect to the need for the consistent spacing and height of star pickets. The Tribunal made some findings requiring the respondent to undertake works to ensure that the star posts and gates were adjusted and be of a consistent height: [118(2)]. In relation to consistent spacing of star pickets, some of the appellants' assertions on that issue were tested at the hearing before the Tribunal. For example, the Tribunal found at [84] to [85]: 84. The homeowners' [appellants'] written submissions claimed that the fencing work does not comply with the Yarra Valley fencing guidelines. The homeowners did not particularise how the fencing work did not comply with the Council's fencing guidelines and there were no oral submissions made by the homeowner at the hearing in this regard. The evidence from the trader [the respondent] was that these fencing guidelines only apply to boundary fences and the fencing work undertaken with internal fencing only. 85. The homeowners did not refute this evidence... The Tribunal finds that the homeowners have not established that the trader has failed to comply with these guidelines.
8. At the hearing of the appeal, Mr Cassidy who appeared in his capacity as a director of the respondent, said that the Yass Valley Council fencing guidelines only applied to boundary fences. That same evidence was referred to in the Tribunal's reasons at [84].
9. The Tribunal accepted the evidence of the respondent that the terrain and presence of tree roots prevented it from evenly spacing the star posts: [49] and [105]. The relevance of photographs showing "open terrain" such as that in Attachment F of the appellants' submissions, does not address the evidence that the Tribunal did accept.
10. In light of the Tribunal's findings that there was no specific term and no specific instruction in relation to the spacing of the star pickets, we are of the view that it was open to the Tribunal to find that the respondent did not breach the ACL guarantees incorporated into the FT Act or perform defective work so as to require the removal of all of the star pickets and have them replaced at even spacings: [107]. That finding, in our opinion, was not against the weight of the evidence. The Tribunal found that one example of a spacing of 6.6 metres between the star pickets along fence N showing loose and insufficiently strained wires, was "too much" (at [108]). That finding cannot be applied across all spacings if they exceeded the 3.5 metre or 4 metre intervals for which the appellants contended.
11. In the oral submissions during the hearing of the appeal, Mr Cassidy said that in a conversation with Mr Hart, that Mr Hart agreed to the spacing of the star posts as installed by the respondent. This is generally consistent with the evidence set out by the Tribunal at [45] and [46].
12. In the absence of the appellants lodging the sound recording or a transcript of the hearing at first instance as directed by the Appeal Panel on 23 March 2022 and again on 14 April 2022, we are not in a position to assess the evidence that was before the Tribunal on this issue and whether it was challenged or the subject of competing evidence by the appellants. We cannot therefore conclusively determine whether that finding was not fair and equitable or against the weight of evidence by reason of the contentions now made on the appeal.
13. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]-[26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]-[27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]-[28].
14. As the Appeal Panel stated in Watson v Chen [2022] NSWCATAP 44 at [27], compliance by the parties with procedural directions made by the Tribunal is "mandatory, not voluntary…". This is reiterated in the NCAT's Guideline 1 "Internal Appeals" at cl 60 that states: 60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon in order to prepare the matter for hearing.
15. In any event, the finding by the Tribunal concerning Mr Hart accords with the respondent's oral submissions at the hearing before us. That submission by Mr Cassidy was not challenged and neither was the evidence at [45] and [46] of the reasons that were in support of the Tribunal's finding that the even spacing of star pickets was not possible due to the terrain and obstructions encountered during the work: [105].
16. The appellants identified four documents in support of their submission that the Tribunal failed to properly deal with the evidence in support of their contention that star pickets should be consistently set at 4 metre or 3.5 metre spacings: 1. The first document is the Yarra Valley Council fencing guideline, to which we have referred above and about which the Tribunal had regard to the unchallenged evidence of Mr Cassidy that the guidelines only applied to boundary fencing: [84] 2. The second document is the quote from the unidentified fencing contractor dated 17 April 2021, which makes reference to black steel posts to be installed every 4 metres: [29]. For the reasons we have set out above, we have found that the Tribunal correctly excluded that document from evidence. 3. The third document is identified as a document by the respondent under the heading "due care and skill" (Attachment J at page 36 of the appellants' submissions). In part that document (which appears to have been taken from the respondent's written submission to the Tribunal) accepts an optimal spacing of 3.5 metres but it does not address the reasons found by the Tribunal as to why such spacing was not feasible without extra cost or that Mr Hart acquiesced in the spacing without any fixed and regular intervals when he said to Mr Cassidy to do "the best you can": [45]-[46]. The respondent's document stated: The problems with wet ground and rocks remained an issue but was not as bigger [sic] problem as with the house fence. To alleviate these problems, some star posts had to be moved left or right of the optimum [sic] distance (star posts set at 3.5m spacings where possible). This is commonplace when erecting rural fences where the ground is rocky. 1. The fourth document is actually two documents by Regional Fencing Solutions and are described as invoices dated 14 February 2022 and 6 March 2022 (Attachments S and T at pages 60 and 61 of the appellants' submissions). These documents are "new" evidence for the purpose of the appeal and indirectly relate to the other new evidence referred to above being the statement made by Mr McGuiness dated 8 March 2022. Only the first Regional Fencing Solutions document dated 14 February 2022 is an invoice. That accords with the statement made by Mr McGuiness that he attended the appellants' premises to undertake 160 metres of hinge joint fencing on 12 February 2022 (Attachment O at page 51 of the appellants' submissions). There is no suggestion that the works the subject of the second document dated 6 March 2022, which is not an invoice and is actually a "quote", have been undertaken. Since the statement made by Mr McGuiness is dated 8 March 2022, presumably if he had undertaken those works on or about the date of the quote, he would have said so, but he did not.
17. Therefore, the submission by the appellants that the Tribunal did not consider the evidence comprising the first three of the four documents set out above is not entirely correct since it did have regard to the Yarra Valley Council guidelines. To the extent that the submission is partly correct, the quote of 17 April 2021 was properly rejected from evidence and reliance on the respondent's own submission about "optimum" spacing does not advance the appellants' case on the appeal.
18. The difficulty with the "new" evidence from Regional Fencing Solutions, particularly the quote which is the sole basis for the appellants' claim in the Notice of Appeal for $2,970, is that it is silent as to whether the quote for "replacing the pickets to consistent distances at @ 3.5 metres" was pursuant to an express instruction by the appellants for that specific spacing or for some other reason. Further, it tells us nothing about whether the rate of $75 for labour included any allowance for extra labour costs associated with the removal of obstructions such as rocks and tree roots to enable the installation of the pickets at consistent 3.5 metre spacings.
19. We cannot speculate or compare the new evidence of the Regional Fencing Solutions quote with an hourly labour rate for that scope of work (with no evidence that the quote was accepted) and the respondent's quote of 27 July 2020 that was accepted by the appellants but appears to be priced on a labour rate per metre of fencing.
20. Finally, the appellants submitted in support of their application for leave to appeal at [26] to [34], that: 1. The importance of star picket spacing was not addressed during the hearing on 21 December 2021 (at [26]; 2. The evidence specifying distance requirements for star picket spacing was not addressed in the hearing on 21 December 2021 (at [27] and [28]); 3. The Tribunal failed to consider the three items of documentary evidence referred to above (at [29]); 4. The Tribunal incorrectly put the onus on the appellants to be responsible for specifying the star picket spacing (at [31] and referring at [28] to the Tribunal's findings (at [106]); 5. The Tribunal did not ask the appellant why it wanted star pickets to be evenly spaced (at [32]); 6. The Tribunal did not ask the respondent why it specified a 3.5 metres star picket spacing and why this was relevant when erecting a fence (at [33]); 7. The Tribunal found that an interval of 6.6 metres was too long in one instance but that distances of 4.8 metres and 4.7 metres were considered acceptable in other parts of the fencing line, despite all of this fencing depicting loose wires (at [34]).
21. The Tribunal commented on photographs provided by the appellants of other local fencing in the local area in support of their claim that fencing work was defective, in particular due to the lack of even spacing and the uneven height of posts: [86]
22. Again, in the absence of the appellants lodging the sound recording or a transcript of the hearing before the Tribunal, we are not in a position to assess the accuracy, relevance or significance of any of the above list of matters in the context of the hearing and submissions of the parties including the photographic evidence relied upon by the appellants before the Tribunal.
23. Further, in so far that the appellants submit that some of these matters were either not raised at the hearing or that the Tribunal did not make certain inquiries of the respondent, these are matters for which the appellants must ultimately be responsible. It is not for the Tribunal to conduct the appellants' case or to test the respondent's evidence when the issues are clearly raised and traversed by both parties. The role of the Tribunal is to ensure procedural fairness to both parties and to assess the evidence that is properly placed before it when making its determination.
24. This also applies to the other ground raised by the appellants concerning the failed electric fence. The Tribunal found at [103] that the appellants did not discharge their onus of proof in relation to the electric fencing and "have not provided any evidence to the Tribunal in support of their claim that the electric fence is not working".
25. The only evidence to which we were taken on the appeal that was said to have been before the Tribunal is some photographs (at Attachment L, pages 41- 42 of the appellants submissions). Two photographs were presented and described on page 41 as a power point with a current tester showing a red light when current is flowing. As we understand it, the two photographs on page 42 depict the electric fence energiser installed by the respondent, which includes a photo of the energiser unit on but there is no red light on the current tester.
26. As far as we are aware on the appeal, that was the totality of the evidence relied upon by the appellants before the Tribunal. If that is correct, we are satisfied that was open to the Tribunal to find that the evidence in that form was insufficient to prove that the electric fencing had failed and that if it had failed, that it was the fault of the respondent.
27. Further, the appellants have not assisted their case on this issue in the absence of providing the transcript or sound recording of the hearing before the Tribunal. As we have said above, we have no way of knowing what issues were traversed by the parties before the Tribunal in relation to the electric fencing, including any evidence or submissions made by the respondent. In the circumstances, we are unable to form a more concluded view than the opinion that we have expressed above on the basis of the photographic evidence that the appellants relied upon before the Tribunal. We cannot express a more informed and concluded opinion as to whether the finding by the Tribunal was not fair and equitable or against the weight of the evidence.
28. In our view, none of the matters now relied upon by the appellants are sufficient to raise any doubt as to whether the Tribunal's findings were not fair and equitable or against the weight of evidence.

Application to rely on "new" evidence

1. For the reasons that follow, we reject the appellants' application to rely on the "new" evidence in the form of the expert report by Mr McGuiness of Regional Fencing Solutions dated 8 March 2022.
2. The appellants submitted that the contact details of the new fencing contractor (ie Mr McGuiness) only became known to them in "November 2021 via another tradesman".
3. There can be no doubt that the importance of obtaining this type of expert evidence in an admissible form was apparent to the appellants. The appellants submitted that they were frustrated by COVID-19 restrictions and that other fencing contractors were reluctant to become involve in a dispute against another fencing contractor. They continued to obtain the details of a person to give expert evidence during the period November 2020 and October 2021, which includes even after obtaining the (redacted) quote of 17 April 2021.
4. Given the importance of having expert evidence that was admissible, it appears that there was no attempt by the appellants to make an application to rely upon evidence from Mr McGuiness, and if it was necessary to be able to do so, by seeking an adjournment of the hearing listed for 21 December 2021.
5. In McInnes v Rheem Australia Pty Limited [2021] NSWCA 89, the NSW Court of Appeal per Gleeson JA, with whom Bell P and Payne JA agreed, observed at [44]: [44] It is trite that a party is bound by the case he or she ran below. As the High Court said in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, in the context of an application to reopen a case following judgment: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.' It would be inimical to the interests of justice to allow Ms McInnes to make an entirely new and different costs application on appeal, after having failed on a different basis before the primary judge: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646; Water Board v Moustakas (1988) 180 CLR 491 at 487; [1988] HCA 12.
6. The principles governing the admissibility of new evidence was discussed by the Appeal Panel in Owen v Kim [2017] NSWCATAP 26 (Owen v Kim) at [37]-[39]. That decision was recently endorsed by the Appeal Panel in Weston (to which have referred above) at [41].
7. The Appeal Panel stated in Owen v Kim at [37] to [39]: 37. In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38. In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40]: The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39. As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
8. In our opinion, the real reason for the "new" evidence now being adduced on the appeal is because the Tribunal had disallowed the appellants' evidence in the form of the quote from the anonymous fencing contractor dated 17 April 2021. As we have set out above, the appellants submit that the evidence in the form of that quote of 17 April 2021 should have been allowed by the Tribunal. If that submission was correct, and we have found that it is not, the "new" evidence would not have been necessary.
9. As the "new" evidence is effectively intended to replace the evidence disallowed by the Tribunal, in light of the authorities referred to above, the appellants should be held to the case they ran before the Tribunal, including the evidence which they sought to rely upon at the hearing, even if it turned out, as in this particular instance, that the Tribunal disallowed that evidence.
10. To allow that new evidence by Mr McGuiness after the hearing and now on the appeal would cause irremediable prejudice to the respondent, having conducted its case in response to the evidence relied upon by the appellants.
11. Objectively, we are not satisfied that the "new" evidence, in the form of an admissible expert report by a qualified fencing contractor, was not reasonably available to the appellants at the time of the hearing.

Disposition of the Appeal

1. We are satisfied that the appellants have not made out any grounds in their appeal to establish that the Tribunal's decision was not fair and equitable or that it was against the weight of the evidence such that a substantial miscarriage of justice may have occurred. The new evidence on which the appellants seek to rely in the appeal should not be allowed.
2. Further, even if we were satisfied that the appellants had satisfied one or more of the requirements of cl 12(1) of Sch 4 of the NCAT Act, we would have exercise our discretion to refuse to grant leave to appeal. We have not identified any demonstrated issue of principle, any question of public importance, any injustice which is reasonably clear so that it would be unjust to allow the finding to stand or any unreasonable approach or outcome in the Tribunal's fact finding process such that it would be in the interests of justice for the decision to be reviewed.
3. In the circumstances, and for the reasons we have referred to above, we refuse the appellants leave to appeal. The appeal should be dismissed.

Orders

1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 18 July 2022