Cevolani v Site Demolition Pty Ltd

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively all possible questions of law, an Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: 'Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.'
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
4. We will address the appellant's Grounds of Appeal in the order in which they are made.

First Ground - Failure to provide procedural fairness

1. We agree that a failure to provide procedural fairness will be an error on a question of law and a basis for setting the decision aside.
2. The appellant states that the Tribunal Member asked him a critical question about his case which he was unable to answer, and that it was reasonable for the Tribunal to identify that an adjournment was required to enable him to obtain an expert report so that he could respond to the Tribunal Member's question. He relies on s 38(5)(a) of the NCAT Act and Italiano v Carbone & Ors [2005] NSWCA 177 in support of this ground of appeal.
3. Section 38(5)(a) of the NCAT Act states: 'The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings,'
4. The appellant has provided a transcript reference. The relevant parts of the transcript relied upon are as follows: 'Appellant: It comes back to my point about them getting the original plans seeing that there were pipes there and then doing some digging or research to make sure that the pipes weren't too deep. But like I said I've never touched them. I'm not a builder--- Member: How do I know that, that's what they have got to do? Because that's essentially the test whether it's done with "due care and skill', because--- Appellant: …… Member: Hang on, can you let me finish. Can you let me finish, please? So, there isn't any report from an excavator comparator that can tell me well that's what should have been done, or an engineer as to what should be done. How do I challenge then what Ms Ishac says as far as what they did was with "due care and skill" because they weren't aware that those pipes had gone to the top? I don't have anyone to say, well that's not what should have happened as well. Appellant: they've been there for 70 years, and I've never touched them. I'm not an excavator so like I said when they got the original plans and saw there were pipes, they could have easily asked me to go digging and find out from a company and say, look this part here is shallow. This part here is deep. Metricon have done all that kind of work to build a home and seeing how deep ---'
5. The transcript demonstrates that the appellant did respond to the Tribunal Member's question. However, he wasn't able to refer to an excavator comparator's or an engineer's opinion or report because he did not have evidence of that type.
6. In Italiano v Carbone Basten JA at [105] referred to a situation where it should be apparent to a court or Tribunal that in order to give a party a reasonable opportunity to present its case, a requirement arises to offer an adjournment even if one was not sought. Italiano v Carbone was concerned with, among other things, section 35 of the predecessor to the NCAT Act, the Consumer, Trader and Tenancy Tribunal Act 2001 ('CTTT Act'). That section stated: "The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call and give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings."
7. Section 38(5)(c) of the NCAT Act is in similar, but not identical terms to s35 of the CTTT Act. It states: 'The Tribunal is to take such measures as are reasonably practicable - (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.'
8. Section 38(5)(a) of the NCAT Act as relied upon by the appellant does not apply to a situation as referred to in Italiano v Carbone. Section 38(5)(a) requires a Tribunal Member to explain to parties the nature of proceedings in the Tribunal which would in our view encompass the practice and procedure of the Tribunal, the requirement for evidence and the principles upon which a hearing is conducted.
9. There is no doubt that in an appropriate case a Tribunal Member is required to offer a party to proceedings an adjournment if that is required to avoid procedural unfairness. In Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 an Appeal Panel considered the position when an appellant stated that he had been denied procedural fairness because he only received the material on which the respondent relied on the morning of the hearing when Tribunal orders required such material to be served some weeks before. In that circumstance the Appeal Panel stated at [29] and [30] : 'The issue of when a Tribunal Member should offer a party an adjournment has been considered by Appeal Panels in Roach v Swain [2021] NSWCATAP 258 and in Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73. These decisions refer to the judgement of Basten JA in Italiano v Carbone & Ors [2005] NSWCA 177 particularly at [105] where his honour stated: '105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions".' (Emphasis added') In the NCAT Act the content of the obligation upon the Tribunal to afford a party an opportunity to be heard is in terms that the Tribunal "is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings ": s 38 (5) (c).'
10. Adopting the approach referred to in Prendergast v Western Murray Irrigation Ltd , we will consider the appellant's first Ground of Appeal on the basis that it refers to s38(5)(c) of the NCAT Act, rather than s38 5)(a).
11. In our view when the appellant was unable to respond to the Tribunal Member quoting the opinion of an 'excavator comparator' or an engineer, there was no obligation upon the Tribunal Member to offer the appellant an adjournment in order for him to obtain such evidence. The appellant was required to run his case as he had prepared it.
12. In Leahy v Watermin Drillers Pty Ltd [2021] NSWCATAP 281 an appeal panel observed at [44]: 'When the proceedings were commenced by the appellant, it was necessary for him to provide all the evidence upon which he wished to rely in support of his claim. The Tribunal does not operate, and nor does a Court operate, on the basis that a litigant who brings a claim may have the proceedings postponed another day for a further hearing if the Tribunal or Court should hold against that party on the evidence then placed before it. It is incumbent upon a party to fulfil the task of adducing evidence sufficient to discharge the burden of proof that a valid claim exists.'
13. In our view, offering an adjournment because a party's evidence does not address a critical issue, goes beyond ensuring that a party understands the nature of the proceedings, or giving a party a reasonable opportunity to present its case. We find that by not offering an adjournment so that the appellant could improve his case by obtaining the evidence of an appropriate witness on the question of whether the respondent had carried out the relevant work with due care and skill, there was no failure on the part of the Tribunal Member to take such measures as were reasonably practicable to ensure that the appellant had a reasonable opportunity to be heard or to have his submissions considered.
14. In addition, it is our view that the Tribunal Member was under no obligation to point out an evidentiary deficiency in the appellant's case and then provide him with the means to overcome that deficiency. IN ZDB v The University of Newcastle [2017] NSWCATAP 70 at [107] the Appeal Panel observed that principles concerning the assistance a Court or a Tribunal, is required to give a self-represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91] and stated, authorities omitted: "… In Bauskis v Liew [2013] NSWCA 297 at [67]-[70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant."
15. For the reasons provided we do not accept that there was an error of law because the Tribunal member did not offer the appellant an adjournment as a result of the exchange which we have set out at [16]. Neither party had legal representation before the Tribunal. Had the Tribunal done what the appellant asserts that it should have, it would have impermissibly advised the appellant how to run his case. This ground of appeal is rejected.

Second Ground - No evidence to support a finding

1. We accept that if the Tribunal member made a finding which was not supported by the evidence, that would constitute an error of law. Refer, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6 Mason CJ at [87].
2. The appellant submits that the respondent did not provide evidence either by an expert report or by way of reference to building codes, guidelines or standards to support its claims that that the pipes should have been at a depth of at least 300 millimetres and 600 millimetres distance below the surface. The depth of the pipes was said by the appellant to be at the heart of the issue of whether the respondent exercised due care and skill.
3. At T36 the respondent's representative stated: 'Now we scraped the whole site, and generally, pipes should be 300 to 600 millimetres deep in the ground.'
4. The Tribunal Member accepted this evidence, as in our view he was entitled to pursuant to s 38(2) of the NCAT Act, as it was given by a representative from a demolition contractor. Once this evidence was accepted by the Tribunal Member, there was no requirement for expert evidence to be provided to establish the normal depth of stormwater pipes. The appellant did not provide any better, or more reliable evidence with respect to the issue.
5. For the reasons provided we do not accept that there was an error of law because the Tribunal Member made a finding that was not supported by evidence. There clearly was evidence to support the Tribunal Member's finding. This ground of appeal is rejected

Third Ground - The Tribunal erred in the interpretation of the exclusion clause in the contract

1. The appellant's grounds of appeal refer to an exclusion clause in the contract which states, among other things, that the respondent would not be liable for 'undisclosed underground services'. The appellant's reasoning is that since the Tribunal found that the pipes were disclosed to the respondent, the exclusion clause operated to make the respondent liable to the appellant for disclosed pipes.
2. The effect and operation of the contract exclusion clause played no part in the Tribunal's decision. As referred to, the Tribunal decision turned on whether the respondent had breached s 18B(1)(a) of the Home Building Act. In our view, contrary to the appellant's submission the exclusion clause did not make the respondent liable for all matters referred to in the clause which were not excluded.
3. This Ground of Appeal is rejected.

Fourth ground - Error of law because the Tribunal did not take into account that the respondent was negligent in attempting to repair the damaged pipes when they did not possess the necessary expertise

1. In his application the appellant stated that the respondent repaired one section of pipe, but the repair work was badly done, and he needed to call a plumber to redo the work. The total reimbursement claimed by the appellant was $12,200.00 which included $1,200.00 for the alleged bad repair work.
2. The appellant bore the onus of establishing by persuasive evidence that the respondent did not act with due care and skill when it carried out the work the subject of the contract with the appellant. This onus included proving the allegation that the repair work was not carried out with due care and skill. In his application in the Tribunal the appellant stated in the 'Order/s Sought' section that amount of compensation for loss was because of a breach of a statutory warranty. As stated, the Tribunal Member was not satisfied that the grounds required to make the order sought had been established, primarily because the appellant had not tendered an expert report or evidence from a comparator to enable the Tribunal Member to compare what was actually done by the respondent with what, according to the expert report or comparator's evidence, should have been done using due care and skill. Having made that finding, there was no need for the Tribunal Member to consider whether the respondent was negligent in attempting to repair the damaged pipes, or whether it possessed the necessary expertise to do so.
3. The evidence filed by the appellant at first instance included invoices from Jayco Plumbing and Maintenance. Invoice 47 states, among other things: 'We started off by digging out sewer boundary trap and realised it was broken the whole way down and collapsed. The stormwater concrete cased 300 ml pipe was broken and someone tried to sleeve it with 100 ml. So we cut it all out and redone it.'
4. In Khan v Kang [2014] NSWCATAP 48 an Appeal Panel considered among other things whether an applicant is required in all cases to tender expert evidence in support of a Home Building Act claim. At [53] the Appeal Panel stated: 'As to the implicit premise that in order to establish a claim for defective or incomplete work in a home building matter there must be a building inspection report by an independent builder to demonstrate any liability of the respondent, such a premise is wrong. Whilst a building inspection report by an independent builder may be very helpful in establishing liability, such a report is not always necessary in a case such as the present. To suggest that an applicant in a home building matter involving only a small monetary amount must engage an independent builder to provide a building inspection report before the applicant can succeed in his or her claim is also inconsistent with the principles set out in ss 36(1) and (4) which require the Tribunal to facilitate the just, quick and cheap resolution of the real issues in proceedings and to conduct proceedings so as to facilitate the resolution of the issues in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter.'
5. In his reasons the Tribunal Member did not refer exclusively to an expert report. Reference was also made to a comparator's evidence which we understand to mean evidence from a contractor with similar expertise to the respondent whose evidence as to what should be done using due skill and care could be compared to what the respondent actually did in the performance of the work. The decision in Khan v Kang is also of assistance in considering whether the Jayco Plumbing and Maintenance evidence should have been considered by the Tribunal Member as a 'comparator's evidence' At [50] the Appeal Panel stated: 'A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete.'
6. Having regard to the above extract, we are not satisfied that the Tribunal Member should have but did not take the Jayco Plumbing and Maintenance evidence into account as the evidence of a comparator as regards the repair work. There was nothing in that material which identified in even the simplest of terms the ways in which the repair work was considered to be defective or not carried out with due care and skill.
7. For the reasons provided we reject the Fourth Ground of Appeal.

Fifth Ground - The Tribunal erred in law in not taking into account that respondent engaged in misleading and deceptive conduct

1. The appellant's case in the Tribunal at first instance did not include a case for misleading and deceptive conduct. An appeal is not a re-hearing of the original proceedings or an opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case : Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. In Mamo v Surace (2014) 86 NSWLR 275 at 289 McColl JA, with whom Ward JA and Tobias AJA agreed, held: '[75] A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2)(1985) 59 ALJR 481 at 483; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.'
2. This principle has been consistently applied in the Tribunal. Refer, Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109, Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 and in Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55].
3. This ground of appeal is rejected on the basis that this was not an issue that was raised in the first instance proceedings. Even if it had, nothing to which the appellant has referred us suggests that it should have been successful. The "email trail" between the parties which was closely considered during the hearing of the appeal provides support for that observation.

Sixth Ground - The Tribunal erred in law by not taking into account that there was an implied term that the materials supplied by the respondent to repair the damaged pipes would be reasonably fit for their intended purpose

1. The appellant's case in the Tribunal at first instance did not include a case for the implication of a term that the materials supplied by the respondent to repair the damaged pipes would be reasonably fit for their intended purpose. Even if it had, nothing to which the appellant referred us suggests that, had it been raised, such a claim should have succeeded.
2. This ground of appeal is rejected for the same reasons as provided in connection with the fifth ground of appeal.

Seventh ground - The Tribunal erred at law in applying the principles of Rogers v Whittaker (1992) 175 CLR 479 by concluding that in exercising due care and skill, the respondent did not have a duty to warn of material risks to the pipes before commencing demolition works

1. This ground of appeal is not developed by the appellant in his Outline of Submissions filed on 29 April 2022.
2. In his oral reasons for decision the Tribunal Member referred to the High Court decision of Rogers v Whittaker (1992) 175 CLR 479 in context of the scope of a duty of care at common law being objective. In our view the reference to Rogers v Whittaker was not necessary as the facts of that decision concerned an operation conducted by an ophthalmic surgeon and the obligation on the surgeon to warn the patient of the risks inherent in the surgery. While we are of the view that reference to Rogers v Whittaker was not appropriate in a case concerning the warranties implied by s18B(1) of the Home Building Act, we are also of the view that, in the present circumstances, reference to the case did not impose an obligation to find that there is any requirement in s18B(1) of the Home Building Act for a builder or contractor to warn of inherent dangers in undertaking any particular residential building work.
3. We reject this ground of appeal on the basis that the Home Building Act did not require the respondent to warn the appellant of inherent dangers in undertaking the residential building work.

Eighth ground - The Tribunal erred at law by not taking into account that the appellant had the availability to bring an action for breach of reasonable care and skill both in contract and tort and as a result did not consider whether the respondent had breached their duty of care not to cause damage to the appellant's property

1. The appellant was obliged to bring his case before the Tribunal on the grounds that he thought most appropriate. The Tribunal had no obligation to formulate his grounds for him or to advise him on the best way in which to frame his case.
2. As stated in Bauskis v Liew [2013] NSWCA 297: 'Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant'
3. We reject this ground of appeal. The Tribunal Member was under no obligation to consider the appellant's potential action in tort in circumstances where the appellant had not brough such a case in the first instance proceedings. To the contrary, the appellant's application in the Tribunal stated in the 'Order/s Sought' section that amount of compensation for loss was because of a breach of a statutory warranty.

Significant new evidence is now available

1. In section D of his Written Submissions filed on 29 April 2022, the appellant refers to an expert's report dated April 2022 prepared by Mr Capaldi in connection with the demolition works and rectification of damages carried out by the respondent.
2. The appellant seeks to rely on Mr Capaldi's report to substantiate his submission that he has suffered a substantial miscarriage of justice as he was deprived of a chance which he states was fairly open for a different and more favourable outcome had he been afforded procedural fairness and informed about his opportunity to seek an adjournment to obtain the expert report from Mr Capaldi.
3. A party is entitled to seek leave to appeal in the Tribunal on the basis that he or she may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available to him or her at the time of the hearing at first instance: Sch 4, cl 12(1)(c) of the NCAT Act.
4. "Not reasonably available" in cl 12(1)(c) means that, judged objectively, the evidence in question was unavailable because no person could have reasonably obtained the evidence - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. This ground for leave to appeal, does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
5. The appellant has not established that Mr Capaldi's report was not available at the hearing because no person could have reasonably obtained it. For that reason he has not established that leave to appeal should be granted because of Mr Capaldi's evidence is now available.
6. We have found that the Tribunal Member was not under an obligation to offer the appellant an adjournment at the hearing, so that he could obtain this report.
7. Leave to appeal is refused on the ground that significant new evidence is now available that was not reasonably available to the appellant at the time of the hearing at first instance.

Disposition of the appeal

1. In accordance with the above reasons, we will refuse leave to appeal and dismiss the 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: 29 July 2022