Cameron v Ozzy Tyres Pty Ltd

Cameron v Ozzy Tyres Pty Ltd - [2016] NSWCATAP 70 - NSWCATAP 2015 case summary — Zoe

[3]

Reply to Appeal

The respondent filed a reply to appeal on 13 August 2015. A second reply to appeal was filed on 15 October 2015.
The first reply is a lengthy document and we have taken all of it into account, the more significant parts of it can be summarised as follows: 1. the refusal to exercise the discretion to grant the adjournment, was warranted; 2. the appellant did not make an application for further time to prepare evidence; 3. the appellant was cognisant for the need to establish the quantum of his loss and purposely chose to meet this requirement by reliance upon insurance documentation; 4. the appellant only sought an adjournment during the final hearing once he had become aware of the deficiency of his evidence. It is not in the interests of justice or consistent with the objects of s 3 of the Act to allow a party an adjournment as soon as it realises that its evidence is defective. It cannot be said to be unfair or inequitable to refuse to grant an adjournment in this circumstance; 5. the appellant made a forensic decision to lead a particular type of evidence to establish quantum and only sought an adjournment, when that evidence was rejected; 6. the fact that the appellant was not legally represented is irrelevant; 7. the appellant offered no explanation as to why the evidence was not prepared beforehand; 8. the appellant's complaint that the respondent did not provide a quote to repair the vehicle was irrelevant; 9. the decision to not allow an adjournment cannot be criticised and there was nothing inherently unjust, unfair or inequitable about refusing the adjournment; 10. the further evidence sought to be used by the applicant was not fresh evidence; 11. the respondent opposed leave to appeal being granted.
Attached to the second reply is a nine paragraph document which concludes by stating that the respondent supports the original orders made by the Tribunal. Some of the statements in it appear to be irrelevant to the appeal. It is unnecessary for us to summarise it in these reasons. The document makes clear that the respondent supports the original orders made by the Tribunal and believes that is was a fair Tribunal and the outcome was fair. It was said that sufficient time was given to provide evidence.

[4]

Appellant's Written Submissions

Directions were given by the Tribunal that the appellant file and serve an outline of written arguments and material to be relied upon. The Tribunal also gave directions that the respondent file and serve an outline of arguments and material in reply.
Pursuant to those directions, the appellant filed and served eleven pages of signed written submissions, a contents page which included reference to disks 1, 2 and 3 which recorded what was said at the hearing on 14 May 2015 and the three disks. We have read all of those submissions and have taken them into account. It is unnecessary for us to detail all of them in these reasons for decision and in the following paragraphs we summarise some of those submissions.
The appellant complained that the directions given on 17 March 2015 were uneven and were not fair and equitable because the appellant was ordered to file documents by 24 March 2015 (four working days) whereas the respondent was given until 28 April 2015 to lodge documents. However there is nothing in this point because Ms Stokes revealed at the appeal that she in effect volunteered to provide the documents by 17 March 2015 because the documents were already prepared. Ms Stokes is the appellant's wife and the Appeal Panel allowed her to assist the appellant. Almost all of the appellant's oral submissions were made by Ms Stokes.
It was said that if the respondent had offered repair, the appellant would have replied for an extension of time to obtain a quotation of repair from a licenced BMW repairer. With no offers of repair from the respondent, the appellant had no reason to believe that a repair was going to be offered.
It was said that the appellant sought an adjournment to have the experts sign the reports and attach their CVs, not to fortify the evidence when it "realises there were deficiencies in the evidence" as implied by the member in paragraph 10 of the decision. The appellant sought an adjournment of two points - to have the expert reports qualified and to obtain a value on repair costs, due to the respondent's offer of repair at the hearing.
The appellant disagreed that he made a forensic decision to lead a particular type of evidence to establish quantum.
It was the appellant's lay opinion that the submission of the insurance document and the advice of the experts would suffice.
The appellant submitted that pursuant to the directions given on 17 March 2015, the respondent was to obtain a quantum of repairs to the car and a repair notice. The respondent did not submit a quote of repair.
The appellant disputed that part of the reasons for decision that stated that: Such further delay would cause more expense to the respondent and consume more resources of the Tribunal which is inappropriate in the context of proceedings where the amount in dispute is less than $20,0000.
The appellant submitted that the evidence was not deficient in content or weight pertaining to damages to the BMW nor the gravity of the issues of safety deeming it a major problem.
It was said that the real issue was that the BMW was damaged and made unsafe.
The appellant believed that it was his right to choose to claim compensation, loss in value (sic).
It was said that the incorrect application of strict rules of evidence in the initial hearing had overridden the consumer guarantee definition of major problem and major failure, which the appellant submitted was unfair and inequitable.
The appellant sought a clearer definition of what his rights were under the definitions of "these Acts & and guarantees".
The appellant then made submissions on ss 267, 268, 107 and 156 of the Australian Consumer Law.

[5]

The Oral Submissions of the appellant

The appellant's written submissions were prepared in such a way that parts of them were in a blue coloured typing. Ms Stokes said that the errors of law were in the blue typing. Included in the blue typing were references to various parts of the disks. The Appeal Panel has listened to parts of the disks. A summary of those parts of the disks which appear to the Appeal Panel to be relevant to the appeal, is set out in pars 43 - 50 below.
Ms Stokes said that one of the points of law was that they were not allowed a short adjournment to have the CVs and the reports signed. It was submitted that the member should have allowed a half hour for this to happen. Ms Stokes said it was not outlined in the conciliation orders (and we understand this to be a reference to the directions given on the 17 March 2015) that "we were meant to do that". She said they were lay people and they did not understand.
Ms Stokes said that the documents did not include a document of repair because the respondent did not offer to repair.
It was submitted that the member made his finding that there was no evidence that the cost of repair exceeded the value of the vehicle. Ms Stokes disputed this finding and said that: (a) the evidence was on page two of the IVEC report and the ICARS report; and (b) both of those reports said it was uneconomical and it was a write off. Ms Stokes said that they listened to the advice of their experts and they said to forget it (which the Appeal Panel has taken her to mean - to forget about getting a quotation on the cost of repair).
Ms Stokes said under the Australian Consumer Law, there was a major loss and they were entitled to damages. She said there was evidence of the value of the vehicle in the Shannons Insurance document.
Ms Stokes submitted that there was enough evidence to get an adjournment and that was the question of law under Collins v Urban. She said that they had lost a vehicle and that the decision was unfair and inequitable.
During the hearing of the appeal, the appellant attempted to tender what was described as an estimate dated 16 July 2015, apparently obtained from AAA Malibu Paint & Panel. The document showed that it related to the BMW motor vehicle the subject of the appeal. When the Appeal Panel pointed out to Ms Stokes that the estimate did not refer to the cost of rectification of damage caused by tyres and wheels, she agreed that she could not rely upon it for the purpose of the appeal. The appellant did not seek thereafter to tender any further documents.

[6]

Respondents Written Submissions

The respondent filed two pages of written submissions which were attached to its reply to appeal. We have taken all those submissions into account. They may be summarised as follows: 1. although the Tribunal had a discretion to grant the adjournment, the refusal to exercise that discretion was warranted and is not reproachable for eight reasons which were then set out, the eighth being that there was nothing inherently unjust, unfair or inequitable about refusing the adjournment; 2. the appellant was afforded the opportunity of preparing his evidence as he saw fit prior to the hearing and he did so; 3. when the Tribunal gave directions for evidence, the appellant was informed that if he wanted further time to prepare his evidence, a written application could be made. He did not do so; 4. the appellant was cognisant of the need to establish the quantum of his loss and purposely chose to meet this evidentiary requirement by reliance upon insurance documentation as opposed to having an expert witness cost the loss; 5. the appellant only sought an adjournment during the final hearing once he had become aware of the deficiency in his evidence. However it is not in the interests of justice or consistent with the objects of s 3 of the Act to allow a party an adjournment as soon as it realises its evidence is defective. It cannot be said to be unfair or inequitable to refuse to grant an adjournment in that circumstance; 6. the appellant made a forensic decision to lead a particular type of evidence to establish quantum and only sought an adjournment when that evidence was rejected; 7. the fact that the appellant was not legally represented is irrelevant for the reasons set out in the submissions; 8. the appellant offered no explanation as to why the evidence of quantum was not prepared beforehand; 9. the fact that the respondent did not provide a quote to repair the vehicle has no relevance to the reasons set out in the submissions; 10. the decision not to allow an adjournment cannot be criticised, for the reasons set out in the submissions.
It was also submitted that there was no fresh evidence. The respondent opposed leave to appeal being granted for the reasons set out above and there was nothing unfair or inequitable about the Tribunal's decision to refuse to grant an adjournment.

[9]

Further extracts from Tribunal Member's reasons

Set out in this paragraph are further extracts from the member's reasons for decision. 8 Soon after the commencement of the hearing, the applicant sought an adjournment so that the applicant could obtain further expert evidence, or to supplement the expert evidence that had been filed and served in the proceedings. No satisfactory explanation was provided as to why the applicant had not obtained, and filed and served, its evidence in accordance with the directions of the Tribunal on 17 March 2015.The reason given was that the applicant only realised during the hearing that the applicant may need further evidence after the Member raised potential evidential difficulties the applicant had in his case. The respondent opposed the hearing being adjourned. 9. When the matter was listed before the Tribunal on 17 March 2015, the Tribunal made orders that the applicant file and serve documentary evidence (including expert reports) on or before 21 March 2015 after having enquired with the applicant how long the applicant sought to obtain, file and serve his documentary evidence. The orders also directed that if a party required an extension of time to file and serve documentary evidence, a written application could be made to extend the timetable, provided the application was made in writing to the Registrar no later than the day prior to the date for filing and serving documentary evidence. The orders also set out that if documents were not filed and served in accordance with Tribunal directions, the Tribunal may not allow any further documentary evidence unless leave is granted and the parties were "encouraged to obtain advice". 10 The decision whether or not to grant an adjournment is discretionary, and the Tribunal must consider the interests of both parties in the context of the just, quick cheap and efficient resolution of proceedings under Section 36 of the Civil and Administrative Tribunal Act 2013 (Hamoud v State of New South Wales [2011] NSWCA 375 at [131] - [145]). The Tribunal refused to grant the adjournment application in circumstances where the applicant had ample opportunity to obtain advice and relevant evidence, including expert evidence. Further, to grant an adjournment solely to allow a party to fortify its evidence when it realised there were deficiencies in the evidence is not in the interests of justice, because it would lead to a potentially endless cycle of adjournment applications, and delay in the finalisation of litigation. Such further delay would cause more expense to the respondent and consume more resources of the Tribunal, which is inappropriate in the context of proceedings where the amount in dispute is less than $20,000. … 28 Although the contract for the sale of the wheels and tyres was made between Ms Cameron and the respondent, the applicant is the owner of the vehicle and the Tribunal is satisfied that Ms Cameron was acting as the agent of the applicant….. Accordingly the Tribunal is satisfied that it has jurisdiction.

[10]

The Hearing of the application

The hearing of the application commenced before the member on 14 May, 2015. Present in the hearing room were the appellant, Laura Stokes, the wife of the appellant, Tomica Cameron, the daughter of the appellant, Mr Chahine, a director of the respondent and Mr Caporelli, the Operations Manager of the respondent. The member granted leave to Ms Stokes to represent the appellant.
Very soon after granting leave and noting who was present, the member stated that he had an obligation under the Civil and Administrative Tribunal Act 2013 (the Act) to encourage the parties to settle their dispute before the hearing. He also said he had power to facilitate and inform those present what was involved in conciliation. After further discussion the parties agreed to go into conciliation, which in fact then took place with the member acting as the conciliator.
At the conclusion of the conciliation each of the five persons present in the room took an oath, one after the other, to tell the truth when they gave evidence. After the fifth person was sworn, the member asked was either party applying for an adjournment. The member also stated that if the parties applied for an adjournment then he needed to know the basis for the adjournment. Ms Stokes said the basis of the adjournment was because the member had brought up the fact that he wanted to know the actual cost of the repair. The member responded stating it was not the role of the Tribunal to be a legal advisor for the parties and that parties are expected to know the law and to get advice. The member stated that as he understood it, Ms Stokes was seeking an adjournment to obtain further evidence. Ms Stokes agreed. She said words to the effect: she paid for two reports and she believed it is up to those people who had looked at the vehicle, had copies of those said reports to be able to give her a figure on repair. They had deemed it uneconomical. They could clarify that bit further … She wanted to get advice … She paid for the reports. She went to get expert advice. She had done what she could in regards to that. Mr Chahine opposed the adjournment and the member asked him whether the basis of his opposing was the appellant had had a reasonable opportunity to obtain the evidence. Mr Chahine answered yes.
The member asked Ms Stokes why the applicant had not obtained the evidence that he wished to obtain in the proceedings and filed and served that evidence in accordance with the orders the Tribunal made on 17 March 2015. Ms Stokes responded to the effect: the evidence from the motor vehicle insurer's standpoint - uneconomical repair is deemed on the basis of the value of that vehicle insured. So therefore she could not put a monetary figure - only the $16,000. If two expert opinions say its uneconomical, that means it is over the value of $16,000. So therefore the evidence that she had presented was only based on going to those people and getting expert reports on that said thing.
Ms Stokes stated the she had evidence of value and that Shannons had accepted the reports of IVIC and her panel beater in saying it is uneconomical which means its over the value of the insured vehicle. She confirmed that she had a document from Shannons which had not been filed or served and she sought leave from the member to rely upon that document. She stated that basically she got those reports. The member asked how much did she have it insured for and she said $16,000. The member stated that he needed to know the basis of the adjournment and asked whether it was to obtain evidence of the cost of repair of the vehicle. Ms Stokes answered correct and that she could serve the document showing that it is insured for $16,000. She said it was an oversight that she had not filed that document.
Mr Chahine was asked whether he objected to the Shannons document and he stated he did not oppose it. He said he accepted that it was a genuine insurance policy document.
The member then dealt with the adjournment application made by the applicant, and rejected it. In doing so he stated that the application was to obtain further evidence. He said the Tribunal had an obligation under s 36 of the Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings. He said that the Tribunal had made orders about each party filing and serving documentary evidence it relied upon. He said the basis of the adjournment application was that the applicant, on the basis that the Tribunal had identified the legal issues the Tribunal had to consider and apply to the dispute on the issue of determining any loss, the applicant wanted to obtain further evidence about the cost of repairing the vehicle to support the applicant's argument that the cost of repairing the vehicle was in excess of the value of the vehicle. The member stated that there had been no explanation provided as to why that evidence could not have been obtained earlier and why the orders of the Tribunal were not complied with. The member stated that the Tribunal was not prepared to grant an adjournment application simply on the basis that (sic) to give a party an opportunity to make its case stronger. He said there needed to be a reasonable explanation for the failure to comply with the Tribunal orders. The orders were clear, the respondent opposed the application, the matter had been set down for a hearing that day, so the Tribunal would hear and determine the matter that day.
The member asked Mr. Chahine whether he had any documents that he replied upon. He responded saying that the only document that he would like the member to have was the document from a repairer the respondent went to see. Ms Stokes said she opposed that document being tendered, in effect saying that she was not in a position to deal with it. She said that if she had thought that repair was on the table she would have got quotes. She then made mention of something which had not happened at an earlier conciliation.
The member did not grant leave to the respondent to rely upon the document sought to be tendered by Mr Chahine.

[11]

Tribunal Member's analysis of the four reports relied upon by the appellant

In his reasons for decision, the member set out the relevant parts of the reports of Mr Alan Morcombe, Wreck-A-Mended Smash Repairs dated 29 August 2014, Mr Elvio Modolo of Executive Automative Pty Ltd dated 28 August 2014, Int Vehicle Integrity Centre (IVIC) dated 30 January 2015 (Mr Lajkoski) and a one page document by Mr Ojeda of ICARS Australia-Independent Collision Assessments & Recovery Solutions, which was part of the IVIC report. Paragraphs 53 - 56 below are taken from the member's reasons for decision.
Part of Mr Morcombe's report stated: The rear wheel arches have had severe damage caused by cutting off the inner guard lip, which is where the outer quarter panel is welded to the inner wheel arch, leaving both panels now separated and weakening the structural integrity of the vehicle. To rectify this problem correctly using manufacturer's specifications would be a major job, to remove and replace both rear quarter panels and inner wheel arches, being very expensive.
Mr Modolo stated that he was an "authorised RTA inspector" and that his business was "an authorised inspection station". He stated that the vehicle was unroadworthy and "will not pass rego" due to the wheels being too large and too wide. He stated that the rims of the wheels had been machined excessively and were in a damaged state. He further stated that the inner guards had been cut away and the outer guard which had been previously rolled had been crimped and shaved (machined).
In the IVIC report Mr Lajkoski stated: It is our expert opinion there is evidence to conclusively determine that the cutting of the left hand and right hand rear wheel arch which extends into the inner wheel arch frame has compromised the safe integrity of this vehicle. If this vehicle was to be involved in a rear accident, it would not perform as the manufacturer has intended. …. This vehicle would be uneconomical to repair and should be considered to be a write off.
In the report by Mr Ojeda he concludes: It is my expert opinion that the company that carried out the above work did not refer to any form of vehicle Manufacturer specification Repair/Replacement procedures which now compromises the safety and future resale value of the vehicle. Due to the cutting away of the rear Quarter Panel & outer wheel arch pinch weld/Lips this vehicle would require those items to be replaced by a licensed Factory BMW repairer however, the cost in doing so would be uneconomical and the vehicle would be deemed a Total Loss/Write Off.

[12]

The Tribunal Member's findings on liability

The member referred to relevant sections of the Australian Consumer Law 2010 (ACL). He referred to s 60 which provides for a guarantee as to due care and skill where a person supplies, in trade or commerce, services to a consumer. He referred to s 61 which provides for guarantees as to fitness for a particular purpose. He referred to s 54 which provides for an implied consumer guarantee that the goods are of "acceptable quality". He referred to s 55 which requires that the goods must be fit for any disclosed purpose.
The member was satisfied that the appellant had proved that the respondent breached ss 54 and 55 of the ACL in respect of the sale of the wheels that were clearly too large for the appellant's vehicle. The member was also satisfied that the appellant had proved that the respondent breached ss 60 and 61 of the ACL in respect of the work it performed modifying the appellant's vehicle in an attempt to make the wheels fit properly within the guards of the vehicle. The member held that to make modification to the vehicle which potentially affected the roadworthiness of the vehicle, and without any approval of Roads and Maritime Services or engineer's certification of the work performed, was a clear breach of the relevant provisions of the ACL to which he had referred.
The member was satisfied that the appellant had proved that the respondent's breach of the ACL should be compensated by refund of the moneys paid to the respondent for the cost of the wheels and tyres and the amount paid in respect of the modification of the vehicle. That refund was conditional upon the appellant returning the wheels and the tyres to the respondent.
The member rejected the appellant's claim for damages on the basis that the vehicle was a write off. He did so because: 1. No evidence was provided of the market value of a 2005 model 120i BMW having travelled the kilometres the appellant's vehicle had travelled. He found that the fact that the appellant had comprehensively insured the vehicle for $16,000 did not mean that the market value of the vehicle was $16,000; 2. The evidence provided by the appellant did not contain any details of the cost of rectifying the vehicle. The reports simply asserted that it would be "uneconomic" to repair the vehicle, without setting out the basis for such a conclusion. The member held that the reports of IVIC and Wreck-A-Mended did not set out the qualifications and expertise of the persons providing the expert opinion and were so deficient as to content that, even if they constituted expert evidence, little if any weight should be given to such opinions, while taking into account that strict rules of evidence do not apply in this type of dispute in the Tribunal.
The member held that as there was no adequate evidence of the cost of rectification of the vehicle, nor any adequate evidence of any loss of value of the vehicle, and as the absence of such evidence was the responsibility of the appellant, the Tribunal could only award nominal damages for the physical damage to the vehicle by reason of the modification to the inner guards by the respondent. The Tribunal therefore awarded nominal damages of $100.
The member was correct in not accepting statements in the four reports which required proof by way of admissible expert evidence. The four reports did not comply with the Tribunal's Procedural Direction 3 dated 3 February 2014 nor satisfy the requirements for admissibility of expert evidence stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (2001) 52 NSWLR 705 at [85].

[13]

Did the Tribunal Member fall into error in rejecting the adjournment application

The Appeal Panel is of the view that in determining to reject the appellant's application for an adjournment, the member failed to take into account a material consideration (House v The King [1936] HCA 40 (1936) 55 CLR 499 at 505) namely, the appellant had prepared his application to the Tribunal by obtaining statements from four persons who he believed were able to give relevant expert evidence on the question of the damage suffered by him. He had relied upon the witnesses to provide him with reports which he could use in evidence in his application. He paid at least $500 for the cost of obtaining at least two of those "expert reports". It was reasonable for him to rely upon those persons and to proceed on the basis that the evidence would be admissible and would be the only evidence he would be required to place before the Tribunal on the question of the quantum of the damages he could recover. The Appeal Panel is of the view that these are the conclusions to be drawn from: (a) the obtaining by the appellant of the four reports; (b) the content of the four reports and (c) the statements made by Ms Stokes during the adjournment application. The Appeal Panel is of the view that the member's exercise of his discretion was affected by an erroneous assessment of the factual material before him (Squire v Rogers [1979] FCA 48 (1979) 39 FLR 106 at 114. The Appeal Panel is of the view that the member fell into error when he stated that: (a) there had been no explanation provided as to why the evidence could not have been obtained earlier and why the orders of the Tribunal were not complied with (see par 49 above); and (b)no satisfactory explanation was provided as to why the appellant had not obtained, and filed and served, his evidence in accordance with the directions of the Tribunal on 17 March 2015 (see par 42 above).
This is not a case where the appellant had not taken appropriate steps to obtain relevant and admissible evidence. Mr Jajkoski and Mr Ojeda expressly stated in their reports that they were expressing their expert opinion. The reports of Mr Morcombe and Mr Modolo contained evidence of the damage which had been suffered by the vehicle.
In the above circumstances the conclusion to be drawn is that the appellant would have had no reason to suspect that there was anything further for him to do: (a) to comply with the directions given by the Tribunal on 17 March 2015; (b) to prepare for the Tribunal hearing; and (c) to be in a position to place before the Tribunal all the evidence he needed on the question of the quantum of the damages.
There is no doubt that appellate courts exercise particular caution in intervening in matters of a court's practice and procedure (which includes applications for adjournments). Such an application is to be resolved according to the overall requirements of justice in the particular circumstances (Homod v State of New South Wales [2011] NSWCA 375 at [131] - [132]).
In Homod, the Court of Appeal quoted with approval the following statement by Deane J (with whom Forster and Brennan JJ agreed) in Squire v Rogers (1979) 39 FLR 106 at 113 - 114: The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: …. A court of qppeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to … the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion. (The Court of Appeal added their own emphasis to the last sentence of the above quotation.)
In Bajramovic v Calubaquib [2015] NSWCA 139, the Court of Appeal dealt with an application for leave to appeal against an order made by Balla DCJ dismissing an application by the appellant seeking leave pursuant to s 109 of the Motor Accidents Act to commence proceedings in respect of a motor vehicle accident on 20 November 2007. An earlier application seeking the same leave had been made by the appellant to the District Court and it had been dismissed.
One of the questions considered by the Court of Appeal was whether the provisions of the Civil Procedure Act 2005, particularly ss 56 - 60 should be taken into account in determining whether a second application for an extension of time to commence proceedings should be permitted where the application was based on evidence that could have been adduced at the time of an unsuccessful first application but, for whatever reason, was not adduced - see [42].
At [43] Emmett JA (with whom Leeming JA and Adamson J agreed) said: The overriding purpose of the Civil Procedure Act and the rules of Court in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must seek to give effect to that overriding purpose when it exercises any power given to it by the Act or rules of Court. … (The Appeal Panel notes the similarity between this passage and s 36 of the Act).
At [44] Emmett JA said: In deciding whether to make an order or direction for the management of proceedings, the Court must seek to act in accordance with the dictates of justice.
At [49] his Honour said: … In so far as Balla DCJ failed to take account of the likely injustice that would flow for the Applicant if he would have been able to provide a full and satisfactory explanation for delay, but is deprived of the opportunity of doing so, her Honour erred in declining to decide whether he had done so.
At [50] his Honour said: I consider that Balla DCJ erred in concluding that the bringing of the second application by the Applicant was an abuse of process without considering the injustice that may flow to the Applicant by reason of the refusal to hear the merits of his application for an extension. In those circumstances it is appropriate that leave to appeal be granted and that the appeal be allowed. There would otherwise be an injustice wrought by the refusal of leave to appeal.
The conclusion to be drawn from Mr Modolo's evidence is that unless the damage is repaired, the vehicle will remain unroadworthy and it will not be possible to have it registered.
The conclusion to be drawn from the report of Mr Morcombe is that the wheels were too big for the car; the car has been damaged as a result; and that to rectify the problem would be a major job.
The conclusion to be drawn from the reports of those two witnesses is that the cost of repairing the vehicle would not be minimal but would be considerable.
Using the benefit of hindsight, it can now be seen that findings have been made by the member of breaches by the respondent of four sections of the ACL.
The refusal of the adjournment has meant that notwithstanding the four breaches of the ACL, the appellant will recover only nominal damages of $100 for the damage to the car instead of what is the appropriate measure of damages.
The refusal of the adjournment was brought about because the member failed to take into account the material considerations which we have mentioned above. The result is that there has been in our view, an unjust result. In our view the overall requirements of justice in this particular case required that the adjournment application be granted. In coming to that conclusion we have taken into account s 36 of the Act (cf pars 68 - 73 above).

At a glance

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Decision date

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Judgment (18 paragraphs)

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Legislation Cited (2)

Cases Cited (10)

Cited By (5)