Buses & 4WD Hire Pty Limited v Richardson

Decision of the Tribunal at first instance

1. The claims made by both parties were made under the Consumer Claims Act 1998 (NSW) (the CCA), which was repealed by the Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW) with the corresponding provisions now contained in Part 6A of the Fair Trading Act 1987 (NSW) (the FTA) commencing from 1 October 2015. Given the decision was made on 21 August 2015, there is no dispute that the former CCA applied at the relevant time.
2. Buses & 4WD claimed entitlement to deduct money from Mr Richardson's credit card on the basis that the first bus had been damaged, the damage was in excess of $41,000 and the damage arose from a breach by Mr Richardson of the rental agreement. Mr Richardson denied breach or liability for the damage and suggested that Buses & 4WD make a claim on its insurers. It is not clear whether there was any claim made but in any event Buses & 4WD sought to recover losses relating to the damage of the first bus in proceedings before the Tribunal and in the Local Court.
3. While the Reasons of the Tribunal at first instance do not set out the relevant provisions of the rental agreement relied on by the parties, the applications referred to the relevant provisions, the terms of which are not in dispute.
4. Under clause 5.1.3, Mr Richardson agreed that he would be liable for "any breach or failure by the driver to comply with all warranties and obligations in each of them set out in this Agreement and applicable to the driver". Under clause 5.1.6 of the agreement, Mr Richardson agreed to cause the vehicle to be "driven and maintained in a cautious and prudent manner and returned to clean and roadworthy condition, fair wear and tear only excepted". Clause 5.1.13 provided that Mr Richardson was to reimburse Buses & 4WD for any loss (including legal costs) incurred relating to the breach of his obligations and to indemnify Buses & 4WD against any liability "arising out" of a breach of those obligations. Relevantly, clause 5.1.18 provided that "where the Renter leaves the form of authority signed by the Renter or verbally provides details on account of the payment of any credit card provider….the Renter irrevocably authorizes the Owner to complete the authority with the full amount due to the Owner for any amount payable on any account arising from the terms of this Agreement and the hiring of the vehicle". Clause 6 of the agreement contains provisions dealing with what happens if there is damage to a hire vehicle where there is an insurance policy. In summary, cl 6 provides that if the Renter has not breached the agreement the Renter will only be liable to pay the excess under the policy to the Owner.
5. Given the terms of the agreement, the critical issues in relation to both applications were, first, whether there had been a breach of the agreement by Mr Richardson and, if so, whether Mr Richardson was liable to reimburse Buses & 4WD for damage to the vehicle, namely whether the damage to the vehicle arose from the alleged breach by Mr Sydenham. These issues centred on whether Mr Sydenham had failed to drive the bus in a "cautious and prudent manner" and whether the damage to the bus was caused by his driving.
6. There was no dispute that the hire bus over heated on the first day of the tour, the driver stopped between Katoomba and Mudgee because of the overheating of the bus but continued until the bus stopped 60 kilometres later, just outside Capertee. Nor was there any dispute that the bus was damaged to such an extent that extensive repairs needed to be effected before it could be roadworthy. The key issue in dispute was the cause of this damage.
7. In the proceedings at first instance, Buses & 4WD contended the damage was caused by Mr Sydenham's actions because he continued driving the bus when there was no water in the radiator. It was further contended that Mr Sydenham continued driving despite warning lights flashing, did not check the bus for a water leak and kept driving the bus when there was no water in the engine. This caused the motor to seize and Buses & 4WD suffered significant loss and damage as a consequence. It was entitled to deduct money from Mr Richardson's credit card on account of these losses and was further entitled to additional monies as compensation for its losses.
8. In contrast, Mr Richardson contended that Mr Sydenham's actions on the day were not the cause of the damage. Mr Richardson contended that the bus began to run hot on the steep climb into Lithgow but prior to this time it had been running smoothly. The driver pulled off the road, checked for leaks, allowed the engine to cool down for an hour and then recommenced the journey. At that stage, the radiator was topped up with water but took less than 2 litres of water. After resuming the journey the temperature gauge briefly started to climb then fell back into normal range at the time of losing power and stopping. Mr Richardson contended that the water pump was faulty (this was conceded by Buses & 4WD) and while it was not entirely clear why the motor seized, it was not the responsibility of the driver and therefore not Mr Richardson's responsibility under the rental agreement. He further contended Buses & 4WD could not establish when the major coolant loss or the catastrophic failure of the water pump occurred. The monies had therefore been improperly debited from his credit card.
9. The Tribunal found that the failure of the hire bus was not caused by Mr Sydenham's driving at [2] and set out the basis for this finding at [2(a)] to [2(n)] of the Reasons for Decision. Relevantly, the Tribunal found as follows: a) Although I place little weight on the passengers' "testimonials" all of which appear in identical terms and thus suggest that the authors did not turn their individual minds to the issues, I do accept the evidence of Mr Morgan. b) Mr Kane Morgan, one of the testimonial authors , came before the Tribunal and gave sworn and tested evidence that he was assisting to run the bus tour; was sitting at the front of the subject bus when it heated, somewhere between the 3 Sisters and Lithgow; that the driver, Mr Sydenham, immediately pulled over; allowed it to cool down; then applied about 2 litres of water which he received from passengers' water bottles ; that once this was done the bus resumed its travels going another 60 Kilometres when it "died " at Capertree. Mr Morgan's evidence remained consistent under cross-examination; c) I was also impressed by Mr Sydenham's evidence. In particular that he is a licensed motor mechanic and transmission specialist; he produced his Office of Fair Trading Licence- MVTL1SL748. He gave sworn evidence that he has been employed as a professional bus driver and mechanic for the last couple of years by Ulladulla Bus Lines Services. This evidence was supported by a very good reference from Ulladulla Bus Lines; d) Mr Sydenham also gave evidence (that was tested) that upon picking up the subject bus at Banksmeadow he then picked up the 30 passengers at Zetland and proceeded on the tour; that the trip was uneventful with the gauge remaining in the safe "green zone" up to and past Katoomba; that between Katoomba and Lithgow a warning light came on so he pulled over immediately; he let the engine cool down and applied about 2 litres of passengers' bottle water. That on then resuming, the bus proceeded satisfactorily for the further, approximately 60 kilometres , the gauge still being in the " green zone" until somewhere between Katoomba and Mudgee, when the motor stopped. e) In his evidence Mr Richardson confirmed that he was on the subject bus at the relevant time. f) He also confirmed that from the amounts deducted from his credit card he seeks a refund of $16,500 and an additional $835 he paid for the rescue bus, to Hills Bus service. g) The thrust of 4WD's case was that Mr Sydenham persisted in driving the subject bus without water in the engine and so caused its destruction. h) In its case 4WD relied on the written evidence of Mr Johnson of Johnson Towing and Mechanics (p21 of 4WD's evidence). On my reading this document does not greatly assist 4WD's case. On examination of Mr Johnson's statement it does not appear (as 4Wd conceded) to state that there was no water in the engine when the author saw it. i) The subject bus was then towed to Seiders, a dealer at Windsor. The Statutory Declaration from Albert Seiders does state "no water in the engine" at the time of his examination and that the lights and gauges were working (p62 4WD's evidence). While this is in keeping with 4WD's case, this evidence could not be tested and is at odds with the sworn evidence of Mr Sydenham who was driving the bus and whose sworn evidence before the Tribunal remained consistent under repeated testing; j) Mr Stoemer's (sic) statement (p29 4WD's evidence) similarly could not be tested and what is more, the author did not see the subject bus. His statement is more in the realm of best practice and later (p68 4WD's evidence) appear s to be based on events and facts of which he was informed by others. k) 4WD also raised the issue of Mr Richardson's need to "push" the bus on to keep to his itinerary .This argument was speculative, not supported by any evidence and directly refuted by the other side; l) What was telling was Mr Bernard Brunei's own evidence when questioned as to why, as he claimed, there was insufficient water in the engine .There was no dispute that the subject bus had only travelled some 160 kilometres between pick up and the breakdown. His response was that there must have been a "leak somewhere ". m) Even if I were to accept 4WD's case, on the basis of this evidence, it is open to me to draw an inference that there may have been some failure in the bus causing a sufficient water "leak" to destroy the engine after the bus had only travelled 160 kilometres. Without knowing what this failure was it is not possible to then lay the blame on Mr Sydenham's driving. n) In any event, as I have already stated, the evidence that Mr Sydenham drove the subject bus in a proper and reasonable manner is persuasive.
10. The Tribunal accepted Mr Richardson's claim for a refund of $16,500 but did not accept his claim for $835 because it found at 2[o] that there was no evidence substantiating the claim. The Tribunal otherwise dismissed the Richardson proceedings.
11. The Buses & 4WD proceedings were dismissed on the basis that there was no jurisdiction to hear the claim because Buses & 4WD was not a "consumer" within the meaning of the CCA. The Tribunal found its claim for relief from having to refund $16,500 deducted from Mr Richardson's credit card could only be dealt with as a defence in Mr Richardson's proceedings. However, the Tribunal noted that even if there was jurisdiction, it would have dismissed the application on the merits based on its findings about the cause of damage to the bus.

Relevant statutory provisions

1. Section 7(1) of the former CCA provided that the Tribunal has jurisdiction to hear and determine any consumer claims brought before it. Section 3A(1) of the CCA provided as follows: (1) For the purposes of this Act, a "consumer claim" is: (a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services.
2. The definition of a "consumer" was set out in s 3 of the CCA as meaning, (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996 , or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee), to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services.
3. While the relevant provision of the CCA relied on by the parties is not referred in the Reasons for Decision of the Tribunal at first instance or in the applications made by the parties, it is apparent that Mr Richardson and Buses & 4WD were seeking orders for payment of money and, in Mr Richardson's case, an additional order that he not be required to pay a further amount to Buses & 4WD under s 8 of the CCA.
4. Section 8(1) of the CCA relevantly provided that, in determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may make one or more of the following orders as it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, ……………. (d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,
5. Section 8(2) provided that in determining a consumer claim wholly or partly in favour of a respondent, the Tribunal may, relevant to this case, make one or more of the following orders as it considers appropriate: (a) an order dismissing the claim or a part of the claim, (b) an order that requires the claimant to pay to the respondent a specified amount of money,
6. Section 13(1) provided: When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.
7. Thus, for the Tribunal to have jurisdiction to make orders under s 8, there must first be a "consumer claim" within the meaning of the former CCA. Once the Tribunal has jurisdiction, it has broad discretion, guided by s 13(1), to make orders both for and against the parties to the consumer claim.
8. There is no dispute, Buses & 4WD having abandoned this ground of appeal at the hearing, that the claim made by Mr Richardson was a "consumer claim" and the Tribunal had jurisdiction to determine his proceedings. What Buses & 4WD disputes, and where it alleges the Tribunal fell into jurisdictional error, is that the Tribunal did not have jurisdiction to determine the Buses & 4WD proceedings but in fact did so.
9. According to submissions made for Buses & 4WD, on the day of the hearing an application was made to transfer the Buses & 4WD proceedings to the Local Court which it is submitted was wrongfully refused. Because Buses & 4WD contends the Tribunal did not have jurisdiction to determine its claim and should have transferred the proceedings, it is relevant to consider the provisions set out in the CAT Act that apply to the Consumer and Commercial Division when it is dealing with such applications.
10. The Consumer and Commercial Division is empowered to make decisions and exercise functions under the legislation allocated to the Division as enumerated in Schedule 4 of the CAT Act, being known as a "Division function" (cl 1, Sch 4). At the relevant time, this legislation included the former CCA (cl 3, Sch 4).
11. Part 5 of Sch 4 contains provisions dealing with the "special practice and procedure" applying to proceedings commenced in the Consumer and Commercial Division.
12. Relevantly, cl 5 provides as follows: (3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue. (4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn. (5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding. (6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act. (7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue. (8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn. (9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, Tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision. (10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.
13. Clause 6 provides: Transfer of proceedings to courts or to other Tribunals (1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are: (a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b) to continue before that court as if the proceedings had been instituted there. (2) If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function: (a) to be transferred to the Tribunal in accordance with the procedural rules (if any), and (b) to continue before the Tribunal as if the proceedings had been instituted in the Tribunal.
14. An internal appeal may be made as of right in respect of a final or ancillary decision of the Tribunal on any question of law but with the leave of the Appeal Panel on any other grounds (s 80(2)(b) of the CAT Act). Clause 12 of Schedule 4 of the CAT Act provides that for the purposes of s 80(2)(b), the Appeal Panel may grant leave to appeal in respect of a decision made by the Consumer and Commercial Division but only if satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable or against the weight of evidence or significant new evidence is available that was not available at the hearing.
15. There is no contest the Appeal Panel has jurisdiction to determine this internal appeal. The key issues were whether an error of law was made by the Tribunal and, if not, whether leave to appeal should be given.

Grounds of appeal and reply to appeal

1. The grounds of appeal of Buses & 4WD can be summarised as follows: 1. The Tribunal erred in making a finding of fact for which there was no evidence in circumstances where that finding was a critical step in the Tribunal's ultimate conclusion (Ground 1). 2. The Tribunal erred in failing to identify the issues requiring resolution and therefore identified the wrong issue in respect of the Richardson proceedings (Ground 2). 3. The Tribunal erred in purporting to exercise jurisdiction to determine the Buses & 4WD proceedings when the Tribunal did not have jurisdiction and should have transferred the proceedings to the Local Court. Buses & 4WD was a "supplier" not a "consumer" under the CCA. The Tribunal also erred in purporting to rely on s 7 of the CCA as conferring jurisdiction on the Tribunal to hear and determine the Buses & 4WD proceedings (Grounds 3 and 4).
2. Buses & 4WD also sought leave to appeal on the basis that there may have been a substantial miscarriage of justice because the findings of fact were either against the weight of evidence or there was no evidence for the finding of fact. It was further submitted that the Tribunal disregarded "entirely critical evidence" to the effect that where water or coolant is lost, either due to a leak or evaporation, the warning gauges would eventually stop working and it was the responsibility of the driver to check the coolant level. Had the Tribunal considered this evidence it would have accepted the proposition that Mr Sydenham should have recognised there was a major problem and should not have driven the bus any further.
3. In its Amended Notice of Appeal, Buses & 4WD raised a further ground of appeal that the Tribunal erred in relying on Part 6A of the Fair Trading Act 1987 as conferring jurisdiction on the Tribunal to hear and determine the Richardson proceedings. Buses & 4WD did not advance this submission in its written submissions and at the hearing of the appeal abandoned this ground.
4. Buses & 4WD sought orders: 1. That the order for payment made in the Richardson proceedings be set aside and that the application otherwise be dismissed; and 2. If the Tribunal does not have jurisdiction to hear and determine the Buses & 4WD proceedings, that those proceedings be transferred to the Local Court.
5. In his Reply to Appeal to the Amended Notice of Appeal, Mr Richardson contended, in summary, as follows: 1. The Tribunal did identify the issues required for resolution. The issue was whether the bus was destroyed by Mr Sydenham's driving. The Tribunal determined and made findings on this issue in its Reasons for Decision. 2. The Tribunal did not purport to exercise jurisdiction and explained to the representatives of Buses & 4WD the limits of the jurisdiction. Buses & 4WD could have withdrawn the application at any time but consented to the matter being heard by the Tribunal. 3. There was evidence before the Tribunal to support the findings and the Tribunal found that the sworn evidence of Mr Richardson, Mr Sydenham and Mr Kane Morgan, who were cross examined, was consistent and credible. The Tribunal considered the evidence presented by Buses & 4WD and did not find it persuasive. 4. The Appeal Panel should not give leave to appeal because the decision was fair and equitable and was made after consideration of all of the evidence by the parties.
6. Grounds 1, 2, 3 and 4 raise questions of law and therefore, Buses & 4WD has a right of appeal. In so far as Buses & 4WD is not able to establish those grounds, it seeks leave to appeal.

Ground 1: No evidence

1. Buses & 4WD submitted that it was an error of law for the Tribunal to make a finding of fact for which there was no evidence if that finding is a critical step in the Tribunal's ultimate conclusion. If a wrong finding is made or inference drawn in circumstances where such finding or inference was not open on the evidence, then the "no evidence" ground is made out in the Tribunal will have fallen into error (Waterford v Commonwealth (1990) 163 CLR 54 at 77)
2. We accept this statement of principle. However, we also note that, as observed in Fordham v Davies [2014] NSWCATAP 60 at [22] citing the relevant authorities, "once there is some evidence for a finding, any error is one of fact not law".
3. Buses & 4WD submitted that a critical step in the Tribunal's ultimate conclusion that Mr Sydenham's driving did not cause the engine to fail were the findings made, or implicitly made, about the water level at the time the engine failed and the warning signals that would have been operating up to the time of the engine failure.
4. Buses & 4WD submitted that the Tribunal made an error of law in relation to what are said to have been "critical" matters for the following reasons: 1. There was evidence from Mr Albert Sieders (of Sieders Truck Repairs Pty Ltd at Windsor), who inspected the bus after it was towed to his workshop, that the water pump had failed, there was no water in the engine and all warning lights and gauges were working. 2. The Tribunal observed that this evidence was untested and was at odds with the evidence of Mr Sydenham. However, Mr Sydenham did not give evidence about the water levels at the time the engine failed. His evidence was confined to the water levels in the radiator when the bus stopped between Katoomba and Lithgow. 3. It was therefore apparent that the Tribunal either found there was water in the engine when it failed or made no finding in relation to this issue. 4. There was also expert evidence from Mr Clint Stoermer (National Operations Manager Bus/MAN Sales and Service) to support the finding that the temperature gauges may have been malfunctioning in the absence of sufficient coolant in the radiator. The Tribunal made no findings in relation to this issue and observed that this evidence could not be tested, the author did not inspect the bus and the evidence was based on events and facts of which he was informed by others. This was in error. 5. The Tribunal impermissibly rejected the evidence of Mr Sieders and Mr Stoermer on the basis it was untested and impermissibly relied on the apparent inconsistencies between Mr Sydenham's evidence and the evidence of Mr Sieders that there was no water in the engine by the time the bus stopped. It made no findings in relation to the temperature gauge and warning light issues 6. It was not open to the Tribunal to reject the evidence presented by Buses & 4WD and to prefer the evidence of Mr Sydenham.
5. To deal with this ground of appeal, it is relevant to consider the material that was before the Tribunal on these issues and the Tribunal's findings.
6. Buses & 4WD presented evidence from Mr Sieders, being a statutory declaration dated 16 July 2015, which stated as follows: The above mentioned vehicle [referring to the MAN coach] was towed into our workshop in March 2015. After further investigations we found that the water pump had failed, no water in the engine, all warning lights, gauges were working in relation to the engine temperature.
7. Buses & 4WD also presented evidence from Mr Stoermer, being a statutory declaration dated 21 July 2015. The declaration does not set out Mr Stoermer's expertise or qualifications but it is apparent from documents provided by Buses & 4WD to the Tribunal at first instance (and to the Appeal Panel) that prior to the commencement of proceedings Buses & 4WD was corresponding with the MAN group of companies, including Mr Stoermer, about the failed water pump. Buses & 4WD had requested that the MAN group take responsibility for repairs based on the faulty water pump that had been installed. Liability was denied on the basis that "the water pump leak was detected by the driver" (refer email from Andrew Wehrmann, Regional Technical Manager, NSW, MAN Service, to Sieders Truck Repairs Pty Ltd dated 8 April 2015).
8. Mr Stoermer was described as an expert witness by Buses & 4WD. The statement provided by Mr Stoermer was to the effect that MAN Automotive Imports Pty Ltd had determined that the driver warnings were functioning properly and were operational and that the engine failed as a result of the continued operation of the bus without sufficient coolant. It was further stated that where coolant was lost to the point where cooling capacity of the system was insufficient to cool the engine, elevated temperatures would cause warning lights to illuminate and these warning lights should have been observed by the driver. Mr Stoermer stated that there could be faulty coolant temperature readings if the coolant temperature sensor probe was no longer submerged in coolant, namely if there was either no water or the water was below the sensor. Relevantly, Mr Stoermer stated as follows: Based on examination of vehicle systems and damaged parts it is the conclusion of MAN Automated Imports and MAN Truck and Bus that operator error, or non-observance of the MAN Operator's Manual, led to the vehicle being driven without sufficient coolant until the engine overheated and ultimately suffered major engine damage consistent with acute overheating. Had the engine contained adequate coolant, the temperature gauge and warning lamp would have provided warnings to the driver so the appropriate action could be taken to avoid major engine damage.
9. Mr Richardson relied on his own statement, evidence from Mr Kane Morgan, one of the organisers and a passenger in the front seat on the bus, and the statement of Mr Sydenham. Mr Sydenham's evidence, as recorded in the submissions of Buses & 4WD, was to the following effect: 1. When driving out of Katoomba towards Lithgow, he noticed the temperature gauge starting to rise and when it got to the top of the "green zone" the warning lights came on. 2. He immediately pulled over to see if he could find the problem and could not detect any leaks or signs of leaking. He let the motor cool down so that he could check on the water coolant level. 3. After about an hour he checked the radiator and filled it up. The radiator took about 2 litres of water indicating to him that the radiator was already 90% full and that the bus was cool enough to drive. 4. He commenced driving towards Capertee and during this time the temperature gauge remained in the green zone, although some warning lights would randomly come on and off and the gauge could fluctuate but still within the green zone. 5. When travelling downhill, the temperature gauge went down and he assumed that the fluctuations were due to a combination of the temperature on the day and the uphill climbs. 6. He was a conscious of driving conservatively to avoid overheating. 7. When the bus reached Capertee all the warning lights had gone off and the temperature gauge was in the middle of the green zone, however, about 4 km outside Capertee going up a slight incline, the bus began to misfire and Mr Sydenham noticed smoke blowing from the back of the bus. He immediately pulled over and as he was in the process of pulling over the engine stopped. It was at this stage that he suspected there had been a major failure inside the engine, other than overheating, because the temperature gauge still did not rise as the bus stopped and there were no warning lights on at this time.
10. Having regard to the Reasons for Decision and the evidence that was before the Tribunal at first instance, we reject this ground of appeal for the reasons that follow.
11. First, the Tribunal did not make a finding, by implication or otherwise, that there was water in the engine when it failed
12. If it is said this implication arose because the Tribunal found the evidence of Mr Sieders and Mr Sydenham was at "odds", we reject this submission.
13. Mr Sydenham's evidence was that he checked the water at Lithgow and found that the radiator was about 90% full at the time of stopping. He topped up the radiator by adding about 2 litres of water. His evidence was he did not notice a water leak at this time. Mr Sydenham did not say there was no water in the engine at the time of stopping but that he was not concerned because the temperature gauge was still in the green zone. Mr Sieders' evidence was that there was no water in the engine at the time that the bus was inspected after breaking down. The evidence of Mr Sydenham and Mr Sieders is therefore not inconsistent because it is possible, for instance, that some catastrophic event overtook the water pump after the bus left Lithgow. While it is not clear to what the Tribunal was referring when it stated the evidence of Mr Sieders and Mr Sydenham was at "odds", this is not material because the reasoning of the Tribunal can be discerned by reading the Reasons as a whole.
14. The Tribunal found that the failure of the bus was not caused by Mr Sydenham's driving at [2] and that the evidence Mr Sydenham drove the bus in a "proper and reasonable manner" was persuasive at [2(n)]. It did not make findings about whether there was water in the radiator at the time the engine stopped, whether the warning lights were working or indeed the cause for the failure of the engine.
15. Even if the Appeal Panel accepted that such a finding was made, by implication, and there was no evidence of the finding, we reject the proposition that such a finding was a critical step in the Tribunal's ultimate conclusion that Mr Sydenham's driving had not caused the damage. The Tribunal did not need to make such a finding to determine the critical question in the case and, as such, there is a fundamental flaw in this submission.
16. The critical issue was whether Mr Sydenham had failed to drive in a "cautious and prudent manner" and whether this failure caused the engine to fail. There was much focus on whether there was water in the radiator when the engine stopped. However, the question of whether there was water in the radiator at the time the engine failed just past Capertee was not, of itself, determinative of the critical issue that required resolution. Driving a bus without water in the engine does not of itself establish that the driver has failed to drive in a cautious and prudent manner. It would first need to be established that Mr Sydenham knew or ought to have known there was no water in the radiator or, at the very least, that he knew or ought to have known there was a water leak which would lead to the engine failure, but nonetheless kept driving after Lithgow.
17. Secondly, we do not accept that the Tribunal impermissibly rejected the evidence of Mr Sieders and Mr Stoermer.
18. As already noted the evidence of Mr Sieders about the water did not advance Buses & 4WD's case in light of the accepted evidence of Mr Sydenham. Mr Sieders gave evidence that the warning lights and temperature gauge were operational. Even if this was the case, this does not establish that Mr Sydenham had failed to drive in a cautious and prudent manner.
19. The Tribunal gave little weight to the "expert report" of Mr Stoermer for the reasons briefly described at [2(j)]. While the Reasons do not provide a detailed explanation, it is clear that the Tribunal gave Mr Stoermer's evidence little weight because he did not inspect the bus, relied on information provided by others and his opinion was "in the realm of best practice". When the statutory declaration of Mr Stoermer is examined, it is evident he did not give a reasoned opinion on the most relevant issue before the Tribunal, namely, on whether Mr Sydenham was at fault. He contended that the damage was caused from the engine being driven without sufficient coolant. However, he does not set out the basis for his opinion that "operator error" led to the vehicle being driven without sufficient coolant. This is simply an assertion. In an email from Mr Stoermer to Buses & 4WD dated 17 April 2015 he questioned how it could be possible Mr Sydenham did not know the water pump was leaking, but this was speculation on his part and, relevantly, was not included in his report.
20. Buses & 4WD made submissions to the effect that Mr Stoermer "gave evidence" that it should have been apparent to a professional driver and mechanic such as Mr Sydenham that the temperature gauge could have been malfunctioning (para [14] of the submissions dated 22 October 2015). However, no such statement was made by Mr Stoermer in his statutory declaration. Mr Stoermer observed that if the engine was over heating the temperature gauge would rise and the "STOP" warning lights would illuminate. If this happened he opined that it would be "expected" a driver would observe this and take "reasonable steps". He did not specifically address the actions taken by Mr Sydenham, nor is it clear whether he knew what those actions were. He did not opine on whether these actions were, in the circumstances, negligent or in error. The Tribunal characterised this evidence, not unreasonably in our view, as "in the realms of best practice."
21. Mr Stoermer and Mr Sieders both state that there was evidence the temperature gauge and warning lights were working but they do not directly contradict Mr Sydenham's assertion that temperature gauge was in the green zone from Lithgow to Capertee and until the engine stopped just outside Capertee, only 60 kilometres later. There was evidence that a temperature gauge may malfunction if there was no or very low coolant in the radiator at the relevant time. This is not inconsistent with Mr Sydenham's evidence and is consistent with the explanation suggested by the Tribunal in [2(m)] that there may have been failure in the pump just prior to the engine stopping after Capertee.
22. The Appeal Panel was not directed to any other evidence from witnesses, including experts, about what Mr Sydenham should have known or done in the circumstances, other than general assertions made and its submissions on the issue. General assertions, without probative substantiation, could not have advanced Buses & 4WD's case.
23. The Tribunal relied on and accepted the evidence of Mr Sydenham about what he said happened. His evidence was corroborated to some degree by Mr Richardson and Mr Morgan. Mr Sydenham denied that he was aware there was a leak, he said that he checked the radiator at Lithgow, only an hour before the engine stopped just outside of Capertee, and he filled it with water and proceeded without further incident until after Capertee. He gave evidence that the temperature gauge remained in the green zone, although the warning light would randomly flick on and off. His evidence, which was accepted by the Tribunal, was that this did not cause him concern in the circumstances. Mr Sydenham's evidence was the only direct evidence before the Tribunal about what happened and what he did. Mr Sydenham was present at the hearing, gave evidence and was apparently cross-examined on his evidence. The Appeal Panel was not directed to any concessions made by Mr Sydenham in cross examination about these matters.
24. In summary, the nub of the Tribunal's finding on the critical issue was set out in [2(m)] and [2(n)] of the Reasons for Decision. These findings were open to the Tribunal on the basis of the evidence before it because, in essence, neither party was able to establish when the leak occurred, although it appears to be common ground that there was a leak which had resulted from the failed water pump.
25. Accordingly, this is not a case where it can be said there was no evidence to support the finding that it was not Mr Sydenham's driving that caused the engine to fail. The primary evidence relied on by the Tribunal was that of Mr Sydenham, which the Tribunal found to be persuasive.
26. This ground of appeal therefore fails.

Ground 2: Failure to identify the correct issue

1. Buses & 4WD submitted that the Tribunal identified the wrong issue or failed to identify the correct issue when it determined the proceedings and therefore erred in law (Craig v South Australia (1995) 184 CLR 163). We accept this would be an error of law if established (refer also John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(2)]).
2. The error is said to be that the Tribunal conflated two separate and unrelated factual contests, being the identification of the cause of the water leak and the determination of the culpability or otherwise of the driver for the consequences of the water leak.
3. Buses & 4WD submitted: 1. The Tribunal accepted the evidence that a water leak caused the engine to fail but proceeded to find that as it could not identify the cause, it could not find fault with Mr Sydenham's driving (at [2(m)]; 2. Having accepted there was a water leak the Tribunal should have then proceeded to determine whether a professional driver in Mr Sydenham's position would or ought to have known that, having already overheated with fluctuating temperatures and flickering warning lights, that there was a fault in the coolant system and to continue to drive would expose the bus to the risk of the damage to the engine; 3. Having accepted Mr Sydenham as a witness of truth, it was also bound to accept his evidence that the warning lights were flickering; 4. The Tribunal failed to identify and address the issue of Mr Sydenham's culpability in respect of the engine failure given these circumstances; and 5. In finding that culpability was dependent on the cause of the water leak, the Tribunal erred in failing to identify and address a critical issue that required resolution.
4. We agree that a critical issue for determination was whether Mr Sydenham did not drive in a "prudent and cautious manner", given the overheating issues faced during the trip, and whether this caused the engine to fail. The issue is whether the Tribunal failed to identify and address this issue or whether it addressed another issue.
5. We accept that on the face of it [2(m)] suggests the Tribunal has conflated two matters. We also accept there may be some basis for criticism about how the Tribunal addressed the issue of whether Mr Sydenham was at fault given the brevity of its Reason for Decision.
6. The Tribunal's Reasons for Decision are not entirely satisfactory because the Tribunal summarises a number of findings and conclusions without exposing the reasoning process at a level of detail that allows the parties to easily understand the basis of the findings without close scrutiny. While Buses & 4WD did not raise the adequacy of the Reasons for Decision as a ground of appeal, this was an issue considered by the Appeal Panel in dealing with the submissions made by Buses & 4WD on the errors of law identified.
7. Under s 62(3) of the CAT Act, a written statement of reasons must set out the Tribunal's findings on material questions of fact, referring to the evidence on which those findings are based, the Tribunal's understanding of the law and the reasoning process that lead the Tribunal to the conclusions it made.
8. The nature and extent of the obligation to give written reasons under the general law and pursuant to s 62 was also discussed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [43] to [64]. Relevantly, the Appeal Panel referred to Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 in which Basten JA observed at [48] as follows: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. [Emphasis added]
9. In assessing whether reasons provided have reached a "minimal acceptable level" it is useful to consider the following: 1. In assessing reasons, it is not best approached with an "eye keenly attuned to the perception of error": Minister For Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 2. It is not necessary for a decision-maker to make a finding on every fact that may be regarded as objectively material but the decision-maker must set out its findings on those questions of fact which it considered to be material to the decision it made and to the reasons it had for reaching that decision (P v Child Support Registrar [2015] FCA 116 at [77] citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]). 3. Substantial compliance with the obligation to give reasons is required not perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58 and P v Child Support Registrar (supra). 4. The reasons as a whole should be considered rather than any isolated part. If the decision as a whole discloses sufficient consideration of the important facts, evidence and law, then the court will not uphold the appeal: O'Brien v Repatriation Commission (1984) 1 FCR 472.
10. As noted, the Reasons for Decision are brief but in our view meet the "minimum acceptable level" and adequately deal with the issues in dispute that were required to be resolved for the following reasons: 1. The Tribunal identified and addressed, by making a finding, the critical issue in dispute. That issue was whether the damage to the bus was caused by Mr Sydenham's driving (at [2] and [2(g)]). The Tribunal was not satisfied Mr Sydenham's driving caused the engine to fail, at [2] and [2(m)], and found the evidence that he had driven the bus in a proper and reasonable manner as persuasive at [2(n)]. 2. The Tribunal relied on, and recounted in its Reasons, Mr Sydenham's evidence about what he did (at [2(d)]). The Tribunal accepted his evidence, which was corroborated by Mr Morgan (at [2(b)]). The Tribunal also found that the evidence of Buses & 4WD (from Sieders and Stoermer) did not contradict this evidence (at [2(i)] and [2(j)]). 3. Mr Sydenham's evidence was that he did not know of the leak, the radiator was 90% full when he stopped near Lithgow and the temperature gauge was in the green zone before the bus stopped. The Tribunal noted his sworn evidence remained consistent under repeated testing (at [2(i)]). The evidence from Mr Stoermer was considered and the Tribunal gave its reasons for discounting this evidence at [2(j)]. 4. The Tribunal did not need to make specific findings about whether Mr Sydenham ought to have known there was a leak or whether the flickering warning lights should have put him on notice that the temperature gauge may have been faulty. 5. While the Tribunal could have expanded on these matters, when the Reasons for Decision as a whole are examined, it is clear that the Tribunal concluded Mr Sydenham had driven the bus in a "proper and reasonable manner" (which is sufficiently analogous to "a prudent and cautious manner") and this was based on its assessment of the evidence. This was the critical finding that required resolution. The Tribunal does not need to make a finding on every matter and substantial compliance is sufficient (see P v Child Support Registrar).
11. We are therefore not satisfied that the Tribunal identified the wrong issue or failed to identify and address the correct issue, as said to be disclosed by the Tribunal's findings at [2(m)].
12. Nor are we satisfied that the Tribunal improperly conflated two factual matters in making the statement: Without knowing what this failure was it is not possible to then lay the blame on Mr Sydenham's driving.
13. When read in context it is clear from reading the whole of the Reasons for Decision that the Tribunal was not satisfied, on the balance of the evidence before it, that Mr Sydenham was at fault. The reason why the Tribunal made this statement can be found in the previous sentence and in the previous subparagraph at [2(l)]. In [2(l)] the Tribunal noted that Mr Bernard Bruning (one of the owners of Buses & 4WD incorrectly referred to as "Brunei") had given evidence there must have been a "leak somewhere". In [2(m)] the Tribunal noted that it was open to the Tribunal "to draw an inference that there may have been some failure in the bus causing a sufficient water 'leak' to destroy the engine after the bus had only travelled 160 kilometres." All the Tribunal is saying is that it cannot be satisfied that Mr Sydenham was at fault.
14. Accordingly, this ground fails.

Grounds 3 and 4: Jurisdictional error

1. Buses & 4WD submitted that the Tribunal, in purporting to hear the Buses & 4WD proceedings, fell into jurisdictional error because Buses & 4WD was not a consumer, but rather a supplier, and the Tribunal had no jurisdiction to hear and determine its claim under the CCA. It was further submitted that the Tribunal should have acceded to the request to transfer those proceedings to the Local Court and, given the issues were interrelated, should also have transferred the Richardson proceedings.
2. We accept the submission the Tribunal did not have jurisdiction to hear and determine the Buses & 4WD proceedings for the reasons advanced in the written submissions, namely the claim for recovery made by Buses & 4WD under the rental agreement was not a consumer claim. However, we do not accept that the Tribunal should have therefore transferred both Tribunal proceedings to the Local Court. We note that if the Tribunal had only transferred the Buses & 4WD proceedings to the Local Court and proceeded to determine the Richardson proceedings, this would not have advanced Buses & 4WD's case (for the reasons later referred to at [91]).
3. Mr Richardson commenced his proceedings on 4 June 2015 and sought orders under s 8(1)(a) of the CCA for an order for payment and under s 8(1)(d) for relief from payment. The Tribunal had jurisdiction to deal with both orders sought by Mr Richardson. It made an order under s 8(1)(a) that Buses & 4WD pay, by way of refund, $16,500 to Mr Richardson. In determining the Richardson proceedings, the Tribunal needed to determine whether the amount deducted from Mr Richardson's credit card was wrongfully deducted. Before it could determine this issue, the Tribunal needed to determine whether or not the monies deducted were due and payable by Mr Richardson under the rental agreement. As already noted, this issue turned on the question of whether there had been a breach of the agreement by Mr Richardson and whether that breach caused the damage to the hire bus.
4. Accordingly, in exercising its statutory function, which it was empowered and indeed obliged to do under the CCA given Mr Richardson had commenced proceedings, the Tribunal was properly exercising its jurisdiction. It was not determining the Buses & 4WD proceedings but rather determining whether Mr Richardson was liable for the payment under cll 5.1.3, 5.1.13 and 5.1.18 of the rental agreement. Interestingly, and for reasons that were not explained by the Tribunal, it did not make a determination under s 8(1)(d) of the CCA and dismissed this part of Mr Richardson's claim.
5. Once Mr Richardson commenced his proceedings, the provisions of Part 5, Schedule 4 of the CAT Act came into effect and the following matters were relevant: 1. The issue raised in the Richardson and Buses & 4WD proceedings and in the Local Court proceedings was whether Mr Richardson was liable for the damage to the hire bus under the provisions of the rental agreement. This was the critical issue that was determinative of the outcome in all proceedings. 2. Given the terms of cl 5(3), because the Richardson proceedings were commenced before Buses & 4WD commenced its proceedings in the Local Court, the Local Court had no jurisdiction to hear and determine this issue. This was the case at the time the proceedings were commenced and remains the position. 3. The Tribunal's finding and determination on this issue was therefore binding on both parties.
6. It is clear from the provisions in cl 5 that where the Consumer and Commercial Division and a court have concurrent jurisdiction, the forum in which an issue in dispute is litigated will be determined by the party that first commences the proceedings.
7. Thus, if a consumer elects to commence proceedings in the Tribunal under the CCA (now the FTA), the supplier will not be able to subsequently pursue a claim in respect of the same issue in a court. Conversely, if a consumer or supplier first commences proceedings in a court, the Tribunal will not have jurisdiction to hear and determine the same issue (refer cl 5(7)).
8. Proceedings may be transferred to a court if the parties agree or if the Tribunal directs the transfer (cl 6(1)). There are no statutory criteria set out about how the Tribunal is to exercise this discretion but it is clear the Tribunal must give effect to the guiding principle set out in s 36 of the CAT Act, which provides that the Tribunal must "facilitate the just, quick and cheap resolution of the real issues in the proceedings."
9. Buses & 4WD contended that the Tribunal, by determining the Richardson proceedings, thereby determined the Buses & 4WD proceedings and as the Tribunal had no jurisdiction to determine this claim, it should have transferred the Buses & 4WD proceedings to the Local Court. Buses & 4WD was effectively stymied by the earlier commencement of proceedings on the issue that Buses & 4WD required to be determined in prosecution of its claim for damages. It was submitted that this is why the Tribunal should have exercised the discretion under cl 6 in its favour.
10. Transferring the Buses & 4WD proceedings and continuing the Richardson proceedings would not have assisted Buses & 4WD because both proceedings involved the same critical issue and cl 5(3) would have precluded subsequent litigation of this issue in the Local Court. The only action that would have resolved this problem would have been for the Tribunal to transfer both proceedings. This was opposed by Mr Richardson, who was entitled to have his claim determined in the Tribunal rather than a court.
11. The thrust of the submission made by Buses & 4WD appears to be that the Tribunal, by determining an issue that was at the heart of both proceedings, had also exercised jurisdiction and to determine the Buses & 4WD proceedings. The Tribunal thereby fell into jurisdictional error.
12. We reject this submission. It not only misapprehends the statutory task that was required to be undertaken by the Tribunal in determining Mr Richardson's claim but fails to recognise the significance and relevance of s 8(2) of the former CCA.
13. This provision contemplates that the Tribunal may determine a consumer claim in favour of a respondent and make orders, not only dismissing the claim or part of the claim, which the Tribunal did in this case, but by requiring the claimant consumer to pay the respondent a specified sum of money. If the Tribunal at first instance had accepted Buses & 4WD's claim it may have dismissed the Richardson proceedings and ordered Mr Richardson to pay the amount that Buses & 4WD claimed for compensation owing under the rental agreement. This order would not have been pursuant to the Buses & 4WD proceedings but would have been an order made in respect of the Richardson proceedings under s 8(2)(b).
14. Buses & 4WD submitted that s 8(2)(b) of the former CCA (now s 79O(b) of the FTA) was confined to the determination of a consumer claim itself and not a claim arising from the consumer claim that may properly be characterised as a claim made by the supplier, such as in this case.
15. We also reject this submission for the following reasons: 1. Section 8(2)(b) does not confine the orders that may be made by the Tribunal in determining the dispute between the parties which is the subject of a "consumer claim". The provisions are broad in their scope and are expressed to cover orders that may be made in favour of the respondent, typically a supplier, for the payment of a specified amount by the claimant consumer. It is difficult to envisage how such orders could be made other than in respect of a consumer dispute where the supplier is owed or is alleged to be owed money. 2. The principles of statutory construction are well settled. The task of statutory interpretation must begin with a consideration of the text itself. The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, Hayne, Heydon, Crennan, Kiefel JJ, [47]. 3. The text used in s 8 of the CCA should be given its ordinary meaning and there is no justification to read down the provision. The objects of the former CCA were to "provide remedies to consumers concerning the supply of goods and services" and to "simplify and improve dispute resolution for parties involved in consumer disputes" (s 2A). If a supplier did not have reciprocal remedies available when a consumer commenced proceedings in relation to a consumer dispute, this would complicate rather than simplify dispute resolution in such disputes. 4. This is consistent with the legislative scheme set out in Part 5, Schedule 4 of the CAT Act which provides that an issue in dispute which is the subject of a claim is to be determined in one forum, either the court or the Tribunal, depending on which claim is first commenced. The determination made is therefore binding and precludes further litigation on the same issue in another forum. This is to avoid duplication in litigation and conflicting decisions. 5. If s 8(2)(b) was not intended to cover claims by suppliers arising out of a consumer claim, a consumer could bring proceedings in the Tribunal seeking orders under s 8(1)(d), fail in those proceedings and the supplier would have no remedy for recovery because of the terms of cl 5(3). Moreover, any prior claim commenced by a consumer in the Tribunal would be susceptible to transfer to a court based on the argument that this is the only way for the supplier to have its claim properly and fairly determined. This would defeat the objects of the former CCA which the legislature must have had regard to when it enacted Part 5 of Schedule 4.
16. In summary, in hearing and determining issues that were critical to the Richardson proceedings, the Tribunal was not determining or exercising jurisdiction in respect of the Buses & 4WD proceedings. This is the case even though those issues would also have been determinative of the critical issues raised in the Buses & 4WD proceedings. While a supplier cannot commence proceedings in the Tribunal in respect of consumer disputes, it may defend proceedings commenced by a consumer and thereby get the benefit of an order in its favour under s 8(2) of the former CCA (now s 79O of the FTA). This ensures the whole of the consumer dispute can be determined in the proceedings.
17. This was recognised by the Tribunal in the final paragraph of its Reasons, having found in favour of Mr Richardson, as follows: It would follow from the above that I would dismiss the second proceedings on its merits. However, there is, in any event, a preliminary jurisdictional hurdle. Namely, that 4WD being the "supplier" did not have jurisdiction to bring the second proceedings under the Consumer Claims Act. Thus its claim for relief from having to refund the deducted money of $16,500 and its additional claim for damages could only be dealt with in its defence of the first proceedings. In light of my findings in the first proceedings I make no order in 4WD's favour and I dismiss the second proceedings.
18. The Tribunal therefore dismissed the Buses & 4WD proceedings based on the "preliminary jurisdictional hurdle" but stated that it would have dismissed the proceedings on the merits in any event. While the Reasons could have been clearer (we accept the last sentence is confusing), the previous two sentences make it plain the Tribunal is only dealing with the Buses & 4WD claims by way of defence, namely under s 8(2)(b) of the former CCA.
19. For these reasons, the Appeal Panel is not satisfied that there was any jurisdictional error made by the Tribunal at first instance and we reject Grounds 3 and 4 of the appeal.

Should leave to appeal be given?

1. As already noted, leave is sought on the basis that the findings of the Tribunal were either against the weight of evidence or there was no evidence and on the basis that the Tribunal disregarded entirely critical evidence that where water or coolant is lost, either due to a leak or evaporation, the warning gauges would eventually stop working and it was the responsibility of the driver to check the coolant level.
2. The principles on whether leave to appeal should be granted by the Appeal Panel are well settled. In Collins v Urban (supra) the Appeal Panel conducted a review of the relevant cases and set out the principles at [84].
3. In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
4. The Appeal Panel is not persuaded, on the materials before it and having examined the Reasons for Decision, the Amended Notice of Appeal and the Reply to Appeal, that Buses & 4WD has established any of these matters.
5. The Tribunal at first instance considered the evidence presented by both parties and made findings about the critical issues. It was submitted by Buses & 4WD that the finding Mr Sydenham's driving did not cause the engine failure was against the weight of evidence. For the foregoing reasons set out at [51] to [66] we are satisfied that this finding was not only open to the Tribunal but that it was in accordance with the weight of the evidence. There was no injustice that is reasonably clear, no clearly mistaken factual error, nor are we satisfied that the Tribunal has gone about its fact finding in an unorthodox manner. Finally, we cannot discern, nor were we pointed to, any issues of principle or questions of public importance disclosed by the grounds of appeal.
6. We therefore refuse leave to appeal.

Conclusion

1. The appeal is dismissed and we refuse leave to appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2016