Garabedian v Grays

NCAT Appeal Panel|2016-03-29

Susan Dixon for Respondent File Number(s): AP 16/09094 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 16 October 2015 Before: P French, General Member File Number(s): GEN 15/67085

Background

This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal. The reasons for the decision of the Tribunal were published on 12 February 2016.
The case concerns a claim by the appellant for loss and damage following the purchase by him of an LG front loader washer/dryer from the respondent. The appellant claimed that the machine malfunctioned spilling water into his flat causing loss and damage.
The Tribunal dismissed the appellant's claim. For the reasons that follow we would refuse the appellant leave to appeal and would dismiss the appeal.

The hearing of the Appeal

The appellant appeared in person at the appeal and sought leave for Ms Brodskaya to represent him. We note Ms Brodskaya was a witness in the proceedings below. The respondent did not object to this course. Having regard to s 45 of the CAT Act, there ought to be a good reason why the appellant, who spoke good English and was clearly familiar with all of the issues, should not represent himself. It became apparent, however, that the appellant was very emotionally involved in the matter and asserted that Ms Brodskaya had compiled all of the paperwork for the appeal and therefore would be able to address the Appeal Panel on that material. Accordingly, in order that the hearing of the appeal proceed smoothly, pursuant to section 45(1)(b) of the CAT Act, we granted Ms Brodskaya leave to appear for the appellant at the Appeal Panel hearing. As it turned out, each of the appellant and Ms Brodskaya made submissions on behalf of the appellant.

Material before the Appeal Panel

The appellant relied on a statutory declaration made by himself, which was neither sworn nor affirmed, but filed with the Tribunal 24 March 2016. The Appeal Panel is prepared to accept that document and (subject to what is said below) its attachments as the appellant's submissions rather than as a formal statutory declaration attesting to the truth of the matters contained in it. The statutory declaration attached some material that was before the Tribunal below but, additionally, material that was not before the Tribunal below. The Appeal Panel pointed out to the appellant that, in order to be able to rely on that material, leave would be required and the appellant would need to demonstrate that the material constituted significant new evidence which was evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. The new evidence comprises: 1. A quote to clean the carpet at the appellant's unit; 2. A quote for the repair of the computer; 3. Additional photographic evidence obtained from the internet going to the issue of water stains; and 4. A statutory declaration of a Ms Katsova who had visited the flat after the alleged incidents leading to the water damage.
The appellant could provide no explanation as to why it was that this material was not obtained for the hearing below. In essence, it seems that most of the evidence was gathered because the appellant has now seen the Tribunal's decision and wished to put material before the appeal panel that he thought would be relevant to counter the findings made by the Tribunal. There is no basis upon which we could find that the evidence now sought to be relied upon which was not before the Tribunal was not reasonably available at the time of the Tribunal hearing.
The respondent objected to receipt of the new evidence. We informed the parties that we would consider the evidence subject to that objection and make a decision as to whether or not the evidence ought to be admitted. In our opinion, it should not be admitted. There is no basis to allow the appellant to now lead additional evidence which was clearly available to him, or could reasonably have been available had he chosen to gather it, at the time of the Tribunal hearing. It is not to the point that the appellant may not have thought that the evidence was relevant at that time or did not think fit to put it on. The simple fact of the matter is it was reasonably available but was not tendered. The Appeal Panel refuses leave for the appellant to rely on that evidence.
We have otherwise had regard to the material contained in the appellant's "statutory declaration".
The respondent relied on a document filed on 2 May 2016 which contained submissions in answer to the appellant's material, some photographs and the statutory declaration of it Technical Service Manager referred to above.

The Grounds of Appeal

The Notice of Appeal states that the orders challenged on appeal are: "Member of the Tribunal put too much weight on incorrect consideration so the applicant have lost the chance which was fairly open to him of having fair and equitable hearing, there is, in the eye of the law, a miscarriage of justice or clear injustice."
The grounds of appeal as set out in the Notice of Appeal are: "The ground is the breach of duty to take into account relevant considerations and to ignore irrelevant ones. Member of the Tribunal in proper exercised his discretionary power so the findings on the facts and materials in question were based on an irrelevant evidence to the subject matter from Grays (NSW) Pty Limited. As a result, he failed to take relevant material facts from applicant into account and he did not have formed dissatisfaction in accordance with law. Member of Tribunal took irrelevant consideration into account and failed to bring his attention to the material facts which he was bound to consider and which cannot be dismissed and considered as insignificant or insufficient and took into account a relevant consideration."

Some relevant principles

It is not unusual in matters where parties appear in person, for the Notice of Appeal to be unclear with respect to the identification of grounds of appeal or errors of law. In such circumstances, and having regard to the guiding principles by which the Tribunal operates as set out in the Civil and Administrative Appeals, 2013 Act ("the CAT Act") it is appropriate for the Appeal Panel to review the stated grounds of appeal as set out in the Notice of Appeal, the material provided by the appellant and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that either may raise a question of law or a basis for leave to appeal: see the discussion in Cominos v Di Rico [2016] NSWCATAP 5 at [13].
In this case, having regard to the Notice of Appeal and the material provided by the appellant in support of the appeal and having regard to the oral submissions made by the appellant at the hearing of the appeal panel, we perceive that none of the grounds of appeal sought to be raised by the appellant raise an error of law. Rather, the grounds sought to be raised as explained orally were rather that the decision of the Tribunal was not fair and equitable or against the evidence that was submitted by the appellant to the Tribunal below. There was a submission that the Tribunal had taken into account irrelevant facts, but we regard that as nothing more than the appellant disputed the factual findings made by the Tribunal.
As such, the appellant requires leave to appeal. The principles governing the application for leave to appeal are well known: Collins v Urban [2014] NSWCATAP 17 at [76]-[79] and [84]. Even if an appellant satisfies the appeal panel that he may have suffered a substantial miscarriage of justice in the sense explained in those passages, the Appeal Panel then retains the discretion whether or not to grant leave under section 80(2) of the CAT Act. The appellant must demonstrate something more than that the Tribunal was arguably wrong and leave to appeal will only ordinarily be granted where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or whether the Tribunal has gone about its factor finding process in such an unorthodox manner than it is likely to have produced an unfair result: Pholi v Wearne [2014] NSWCATAP 78 at [31].
We are also cognisant of the principle that where the Tribunal had the benefit of seeing witnesses first hand and observing them giving evidence and then makes findings of credit, there should be a good basis to overturn such findings: see for example: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-3.

Consideration and Disposition of the Appeal

During the hearing of the appeal, we explained to the appellant and his representative, Ms Brodskya the requirement for him to obtain leave to appeal on matters other than questions of law and what needed to be established in order to obtain leave. One of the bases put forward for leave was that the hearing was not fair and equitable in that at the hearing, the appellant was not given an opportunity to say what he wanted to say and the Tribunal only had a very limited time to hear the matter. Whilst, if substantiated, this complaint may rather be a denial of procedural fairness, we have concluded that there is no substance in the complaint. As noted above, the matter was heard during a group list in the Consumer and Commercial division. In such lists, there are often several matters to be dealt with in a limited time. As is also noted above, we were informed that the parties were told there was a limited time for the hearing of the matter but both chose for the hearing to proceed. The appellant did not tender a transcript or recording to substantiate the allegation that he was cut off or could not say all that he wanted to say. His version of events was not supported by the respondent's representative who was also present at the first instance hearing. In answer to a question from the Appeal Panel, the respondent said that the appellant had every opportunity to say what he wanted and that the Tribunal asked questions of each side who then made submissions.
We do not think that there is any evidence by which we could find that the appellant had been prejudiced in any way by the conduct of the hearing. We would not grant leave on this basis.
The balance of the appellant's oral submissions were that the Tribunal's decision was based on the wrong considerations and that the member did not "consider the right facts". We regard these submissions as no more than reflecting the appellant's dissatisfaction with the Tribunal's findings. We can see no basis to interfere with the Tribunal's findings. They were all clearly open to be made on the evidence (or lack of it) before it. For example, it was clearly open to the Tribunal to accept the evidence of the respondent's Technical Service Manager that if there was water in the drum of the machine, the door would need to be forced open for water to spill out. Once this finding is accepted, it must necessarily follow that if there was any damage to the appellant's flat by water escaping, it was not caused by the fault in the machine, rather by the conduct of the appellant in forcing the door open when there was water in the drum. The appellant submitted on the appeal that if had forced the door open the door would have been damaged in some way and there was no evidence it was. There is no evidence that this submission was made below or put to the respondent's witness. Absent that, we do not accept it.
In respect to the findings about the water stains not being consistent with water spilling from the machine, the appellant has not satisfied us that the Tribunal erred in making such findings. As we have noted, the Tribunal made adverse credit findings against each of the appellant and Ms Brodskya. Those findings informed, to a significant degree, the conclusions the Tribunal reached on this issue. There is no basis for us to interfere with those findings.
We have also had regard to the written submissions contained in the statutory declaration filed by the appellant. There is nothing in that material which would alter our conclusions that the appellant has not established that he may have suffered a substantial miscarriage of justice and that he should be granted leave to appeal. Mostly that material seeks to re-argue the matter again. There are assertions of stress and depression but no evidence to substantiate such claims. In any event, there is no evidence by which it could be concluded that any defect in the machine, or other conduct of the respondent caused such stress and anxiety. We do not suggest that if there was such evidence that the appellant would succeed in recovering under this head of claimed loss, rather, that there is simply no evidence to support such claims. The same can be said about the other heads of loss claimed above.
We have formed the view that the findings made by the Tribunal were open to it and the appellant has not demonstrated any error in the approach of the Tribunal or the findings it made.
For the above reasons the orders we therefore make are: 1. Leave to appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2016

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