Botros v Trivett Automotive Retail Pty Ltd t/as Delo Subaru

Nature of an appeal

1. As we explained at the hearing, s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division arise. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. As to questions of law, in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel stated at [12] that in circumstances where the appellants are not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any procedural fairness considerations that might arise to the respondent).

Leave to appeal

1. We note that cl 12 of Sch 4 of the NCAT Act says that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded 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; or (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.
3. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Grounds of Appeal

1. The grounds of appeal are stated in the notice of appeal as follows. We have added paragraph numbers for clarity: [1] Did not listen to evidence given. [2] Did not consider all evidence presented when making a decision. [3] The decision was unjust and no weight was given to the independent report. [4] The member gave strong weight to the evidence presented by the respondent without justifying their arguments. [5] Error of law.
2. These grounds can only be understood by reference to the written submissions submitted with the notice of appeal. These explain in further detail why the appellant claims that the Decision was not fair and equitable, against the weight of the evidence, and that significant new evidence is now available that was not reasonably available at the time of the hearing.
3. In relation to the Decision not being fair and equitable, the appellant submits that the Tribunal:

• did not place any weight on the NRMA report she provided;
• "ignored completely the number of faults associated with this car both which have already been fixed and those yet to be fixed";
• accepted the evidence of the respondent without "any hard evidence or anything written";
• "completely ignored" the appellant's evidence that she was misled with the sale of the Vehicle;
• ignored the appellant's evidence that the "stop/start function wasn't working".

1. In relation to the Decision being against the weight of the evidence, the appellant again refers to the NRMA Report, and raises many of the same concerns that appear above.
2. In relation to significant new evidence now being available that was not reasonably available at the time of the hearing, the appellant sought to rely on the following matters: 1. a new report of the NRMA now being available; 2. a statutory declaration of the appellant and her son, Mr Peter Kamel, who was with the appellant and her husband on the day the Vehicle was purchased; 3. a sound recording of telephone conversations between the appellant's husband and various Subaru salespersons after the hearing.
3. The appellant was represented at the appeal hearing by her husband Mr Adel Kamel, who also appeared for her at the Tribunal hearing. He said that he ought to be able to rely on this new evidence to refute the lies of the respondent and its representative at the Tribunal hearing.

Question of law

1. We have examined the notice of appeal, the written submissions and listened to Mr Kamel's oral submissions. With one exception, we do not consider that a question of law has been identified.
2. The exception is the reference in the notice of appeal to the Member giving "strong weight" to the respondent's evidence, "without justifying their arguments". This might be thought to be a complaint that the reasons given by the Member were not adequate; inadequacy of reasons is a question of law: Prendergast at 13.
3. It is well-established that a judge or tribunal member is obliged to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per Kirby P at 259. A "failure to refer to some of the evidence" is not necessarily fatal, but "for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge" may be an error of law: Mifsud v Campbell (1991) 21 NSWLR 725.
4. The written reasons for decision total 10 pages. They set out the appellant's arguments, the evidence on which she relied, and the respondent's evidence. The Member makes findings of fact in respect of the matters in dispute. He identified and applied the correct law. In our view, the reasons given are adequate for the task required.
5. To the extent that this question of law is raised, the appeal is dismissed. Accordingly leave to appeal is required.

The Decision was against the weight of evidence

1. These grounds can be considered together.
2. We reject the submission that the Member did not place any weight on the NRMA Report of 9 May 2018. He specifically referred to it in relation to items (1), (3) and (6).
3. The report uses a code to indicate an inspected item may be affected. The letter "E" denotes a defect needing early repair, the letter "M", a "minor item. It may be cosmetic or should be checked regularly for further deterioration". The report assessed each of items (1), (3) and (6). We note that the report assessed item (2) as "M", and that the Decision does not specifically refer to the report. However, this does not matter, as the Tribunal in fact ordered that the front passenger seat belt alarm be repaired: see order 2 (a).
4. We note that the NRMA report also states, in relation to item (1), that this feature was "inoperative at time of inspection". This was referred to by the member at [14], who concluded at [16]: 16. The Applicant, in the view of the Tribunal has asserted this fault with the Vehicle but has failed, by probative evidence, to demonstrate it. The NRMA report tendered is unhelpful. It does not comment on the causes of the system not working at the time it was tested nor a remedy. Moreover, comparison with the courtesy cars is of little probative value. They may operate well because they are heavily used. The specifications and possibly the limitations of the system have been set out by Mr Ryan in evidence and the Applicant has failed to demonstrate that the Vehicle's system is not operating to specifications.
5. We do not consider that the Tribunal failed to take into account or give appropriate weight to the contents of the NRMA report of 9 May 2018. We would not grant leave to appeal in respect of this matter.
6. We reject the submission that the "member ignored completely the number of faults associated with this car both which have already been fixed and those yet to be fixed." The Member clearly refers to the fact that two defects had been rectified, namely the carpets and the mirror. He then goes on to consider items (1) to (7) both individually and cumulatively.
7. We reject the submission that "Although the Subaru representative was the respondent in this case, the member believed them without any hard evidence or anything written and ignored completely my independent report, which reflects a few faults". We have dealt with the NRMA report above. The Member's reasons are lengthy. They set out the salient components of the application summarise the evidence and state correctly the applicable law. He then proceeds over approximately four pages to make detailed findings in relation to each of the seven defects claimed by the appellant. We note in particular that:

• in relation to item (1), the Tribunal found that the appellant had failed, by probative evidence, to demonstrate a defect;
• in relation to item (4), the Tribunal found that the appellant had not shown by probative evidence that every part of a car's leather seat covering must be made of leather (when it was allegedly represented by the dealer that the seats were leather). We note that the Tribunal stated that if the appellant had produced evidence that this was industry practice, then the appellant's position would have been different. This may have been the motivation for the appellant to seek to rely on recordings of various Subaru salespersons after the hearing and attempt to rely on that evidence on appeal. We refer to this issue below;
• in relation to items (5) and (6), the Tribunal preferred the "calm and methodical evidence of Mr Ryan" (the respondent's representative), to that of Mr Kamel;
• in relation to item (7), quite apart from the matter being raised for the first time at the hearing, the Tribunal found that there was no evidence that some fault requiring rectification was present.

1. The Tribunal then considered Mr Kamel's submission that all the faults in the Vehicle justified a finding that the Vehicle was not of acceptable quality and when these faults were conflated they constituted a major defect entitling the appellant to reject the vehicle and recover the purchase price. In our view, the Tribunal correctly rejected that submission.
2. We do not agree that the Member "complete ignored" the evidence that the appellant or her husband were misled in relation to the sale of the Vehicle. He found that: 30. The [sic - Mr] Kamel asserted that statements made by unidentified salespersons regarding the stop/start system and the composition of the seats amount to false and misleading representations. Other than assertions to that effect, no evidence of probative value was presented in suppor [sic - support] of that assertion: e.g. identifying the persons who made the statements; a detailed statutory declaration setting out the words used and the circumstances of their use.
3. Finally, we also reject the submission that "the Member ignored how many times I went to Subaru". Quite apart from the fact that Mr Kamel's evidence before the Tribunal was not provided to us (assuming it was in written form), he has not provided a copy of those parts of the transcript of the hearing on which he wanted to rely, not indeed the sound recording itself.
4. Here we should note that Mr Kamel did provide us on 29 October 2018 with a summary of what he says occurred at the Tribunal hearing. The appellant had been directed to provide the sound recording together with a transcript of those parts of the sound recording of the hearing on which she relied. No transcript of any part of the sound recording was produced. What Mr Kamel provided was a summary of some of the exchanges between himself and the Member, interspersed with his commentary on a range of matters, including:

• the purported conversations of Mr Kamel with various unnamed Subaru representatives after the hearing;
• irrelevant material such as "I mentioned to the member that I have vinyl chairs around my dining table for 28 years and there is no a single crack on them";
• his own opinion evidence (such as "in my opinion … either the sales reps are instructed to sell off the cars in any way possible (even if it includes misleading) or they don't know the answers to the questions they are asked");
• and a series of rhetorical questions such as "My question to Subaru is, why is the material in these seats so thin?" and "Why is Subaru going to great lengths to get out of this?"

1. On p 3 of this document Mr Kamel suggests that the Member "had already made a decision in his head" and was favouring Subaru in that he would not listen to Mr Kamel and was "careless" or "simply tired". These remarks are entirely without foundation. Mr Kamel's own document demonstrates that the Member engaged with Mr Kamel, asked him questions and (as the reasons for Decision demonstrate) listened to his responses.
2. Much more is contained in this document. However, it is not is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Rajski v Bainton (Court of Appeal, unreported, 6 September 1991).
3. In summary, we do not consider that any of the material contained in this document assists the appellant.
4. In Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 the Appeal Panel said at [18]: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ...
5. We are quite satisfied that the Member determined the application on the balance of probabilities on the basis of the evidence before him and applying the relevant law.
6. In summary, we would not grant leave in relation to any of these matters either individually, or cumulatively.

Significant new evidence now available

1. The usual rule is an appellant cannot rely on evidence at the appeal which was not before the Tribunal at first instance, unless that evidence was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111; "something more than a party's incapacity to procure evidence is necessary" to satisfy the requirements of cl 12(1)(c) of Sch 4 to the NCAT Act: Al Daouk at [24].
2. As to the evidence of Mrs Botros and her son, there is no feature of their evidence to suggest it could not have been obtained at an earlier time. In that sense, it was reasonably available. Mr Kamel submitted that the evidence should be allowed because Mr Ryan lied at the Tribunal hearing. We reject that submission. It is made without any foundation and the Tribunal member found him to be a careful and reliable witness.
3. As to the second NRMA report of 6 September 2018, it is axiomatic that the Tribunal hears and determines matters at a particular point in time on the basis of the evidence before it. But here, the Tribunal had the benefit of a report of the NRMA which was tendered at the Tribunal hearing. The Tribunal proceeded to its decision on the basis of that evidence. We see no reason why the appellant should be allowed to "top up" or improve that evidence on appeal. In any event, the second NRMA report of 6 September 2018 is relevantly virtually in the same terms as the first report. In other words, even if we allowed the appellant to rely on this evidence, it would have made no difference to the outcome.
4. Finally, we turn to the material contained on a CD filed by the appellant on 29 October 2018. Apparently, that CD contains sound recordings of what the appellant describes as "very important evidence" of eight "different Subaru dealers".
5. The appellant submits, that this evidence establishes, at least, that:

• Subaru dealers represented that the seats in the same make of vehicle were leather, whereas at the Tribunal hearing the Tribunal was told that the seats were partly leather, and that the "Tribunal believed the lie";
• in relation to the "stop start system" evidence before the Tribunal, that Mr Ryan was "blatantly lying".

1. As to whether or not it had been represented at the time of sale that the seats were fully leather, the Tribunal found at [22] that the appellant had not shown by probative evidence that every part of a car's leather seat covering must be in leather. As we noted above, the Tribunal stated that if the appellant had produced evidence that this was industry practice, then the appellant's position would have been different. This however was not an invitation to the appellant to source further evidence to be relied on at the appeal hearing. In any event, this evidence would not have assisted the appellant as it is not probative of what the Subaru representative said to her two years ago.
2. We are satisfied that the appellant could have obtained, and relied on, this evidence, prior to the hearing. It was evidence that was reasonably available at the time. We note that, at least in relation to one such recording, Mr Kamel might be thought to have misled the Subaru representative to whom he spoke, stating that the recording was being made "for training purposes." In any event, these different Subaru representatives are not identified, and their evidence, such that it is, cannot be tested in any way. Nor have we been provided with any transcript of the conversation that took place.
3. In our view, the appellant is simply seeking to improve her evidentiary position on appeal. Her husband Mr Kamel made passionate oral submissions about why he and his wife had suffered an injustice. However, as the NCAT Guideline 1: Internal Appeals, relevantly states: 4. Generally, an appeal is not an opportunity to have a second go at a hearing. 5. Parties to an appeal are not usually allowed to rely on evidence that was not given to the Tribunal at the original hearing.
4. We would not grant leave to appeal on the basis that significant new evidence is now available that was not reasonably available at the time of the hearing.

Conclusion

1. To the extent that leave is required, we would not grant leave. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Order

1. For the above reasons, we make the following orders: 1. the appeal is dismissed; 2. leave to appeal on a ground other than a question of law is refused.

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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: 19 December 2018