[2015] FCAFC 92
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Source
Original judgment source is linked above.
Catchwords
[2015] FCAFC 92
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Judgment (12 paragraphs)
[1]
Background
In 2022, the respondent purchased a car and some fitted accessories from the appellant. The first instance proceedings concerned a claim brought by the respondent (the then applicant) relating to the installation on the vehicle of a roof platform and wind fairing, prior to its delivery on 13 July 2022.
[2]
First Instance Decision
At first instance, the Tribunal delivered oral reasons for the Decision at the conclusion of the hearing; however, a request pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) was received and a written statement of reasons was provided to the parties. What follows is taken from that written statement of reasons.
At first instance, the respondent established that there was damage to the roof. There are three circular markings on the roof above the windscreen which align with three of the five rubber feet that attach to the plastic brackets of the wind fairing. The evidence, which was accepted at first instance, was that on delivery several bolts on the roof platform had not been secured although this was not noticed for several hours and during that time the vehicle was being driven on a highway. It was several months later before damage to the roof was first noticed, when the wind fairing was removed. The questions for the Tribunal had been whether the damage to the roof was caused by faulty installation; and if so, the quantum of compensation or whether an order for repair was more appropriate.
The critical parts of the Decision are found at [16] and [17]:
[16] The Tribunal is, on balance, satisfied that the Applicant has established that upon delivery of the vehicle there was a difficulty in the way the roof rack had been attached and fixed to the vehicle. The evidence establishes, and it was not disputed that contact was made very shortly after delivery with the Respondent and I accept the Applicant's evidence that that was due to issues with the installation of the platform rack. Having weighed up the evidence that establishes the winddeflector attaches to the platform, and accepting that three of the nuts in particular both at the front of the vehicle and one on the drivers side rear of the platform were loose would have caused significant vibration and movement of the platform rack. It is fortunate perhaps that the platform rack made it to Sydney and further inquiries were made by the Applicant.
[17] I have given consideration to the method and way the wind fairing with the front connects to the platform racking. I note that it does not directly affix to the roof of the vehicle. I note also that it does not seem that the window deflector has significant flex. I accept the evidence establishes movement of the roof rack up and down, combined with the vehicle moving forward and the speed of the travel would result in a flexing of the wind deflector. I note that whilst there is only damage at one point across the front of the vehicle it does appear that it occurs in the centre of the roof and perhaps the area most likely, in my view to be impacted by movement and by the wind faring during travel. The Respondent made submissions about the removal of the 3M tape. It would appear that the very nature of 3M tape being installed as part of the installation indicates that perhaps there is the potential for rubbing and that is an extra precaution taken by VW in their instructions to try and ensure damage to the vehicle does not occur by genuine accessories.
Whilst not expressed in terms, it is implicit that the Tribunal found that the damage to the roof was caused by it being impacted by the wind fairing during its initial journey and that this was as a result of the failure to tighten the nuts on the roof platform or the faulty installation of the roof platform.
The Tribunal considered various quotes to repair the damage (at [18]) and ultimately ordered the appellant to pay the sum of $2003.10 to the respondent ((at [19]).
The appellant appeals from that decision (the Decision).
[3]
Jurisdiction of the Appeal Panel
Section 80(2) of the NCAT Act provides a party may appeal as of right on a question of law and by leave on any other grounds, unless the decision is an interlocutory decision, in which case leave is required. Further, as this matter is an appeal from the Consumer and Commercial Division, Schedule 4, cl 12 of the NCAT Act is relevant. It provides that where leave is required, the Appeal Panel may only grant leave if there is a substantial miscarriage of justice because the decision under appeal was not fair and equitable, the decision under appeal was against the weight of the evidence or there is significant new evidence (being evidence not reasonably available at the hearing of the decision appealed from).
[4]
Grounds of Appeal
The grounds of appeal as stated by the appellant are as follows:
We believe: the Member did not read and/or fully understand the evidence.
The Member demonstrated insufficient industry knowledge with regards to the performance and fitment of the accessories which impacted a fair and equitable ruling.
The Member did not give due weighting to the evidence of our expert witness.
The Member allowed our Witness to be intimidated and insulted by the Applicant.
The Member accepted gave excess weight to the Applicant's misleading and irrelevant evidence.
The Applicant's expert witness evidence was collected after the due date.
[5]
Questions of Law
The appellant has not expressly, in the Notice of Appeal, sought to rely on a question of law to ground its appeal as of right. Since the questions of law become the subject matter of the appeal, it is incumbent on the appellant to identify with precision the questions of law: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. Nevertheless, whether there is a question of law must be approached as a matter of substance; and further, where the appellant is unrepresented it may be appropriate to adopt a "more generous or benevolent approach" in assessing whether a notice of appeal adequately identifies any question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51] per Griffiths AJA; Meagher and Kirk JJA agreeing) concerning an appeal from the Land and Environment Court.
As noted, in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]:
[i]n circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
Where, as here, the appellant is not legally represented, the Appeal Panel might itself identify the question of law. The Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 recounts cases where such a course has been followed and balancing considerations that exist at [13]:
"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]. Relevantly, s 38(2) provides that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
Recently, the Court of Appeal and also the Court of Criminal Appeal of New South Wales interpreted the expression "question of law" (in not dissimilar circumstances) as referring to a pure question of law: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [60] - [61] and [109] (concerning a referral to the Court of Criminal Appeal); Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [53] - [54] and Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11] (concerning appeals to the Supreme Court from internal NCAT appeals). As said in AW v WW (No 2) [2024] NSWSC 146 at [53] in relation to appeals to the Supreme Court (but the statement is apposite here): "the path to an appeal is a very narrow one."
Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. As developed in submissions, the appellant's challenge to the decision related primarily to whether the appellant's expert evidence about causation of the damage had been ignored. To the extent that the first ground of appeal contends that the evidence of the appellant was not read, that raises the question of whether the Tribunal failed to consider key evidence and submissions of the appellant such as to constitute a breach of procedural fairness or natural justice, or whether there was a constructive failure to exercise the jurisdiction. A failure to consider key evidence and submissions may constitute a denial of procedural fairness or reveal a constructive failure to exercise the jurisdiction: FLK v Transport for NSW [2023] NSWCATAP 140 at [22] - [27] and cases there cited. We are satisfied that whether there has been a breach of procedural fairness raises a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202].
As disclosed in the Decision, the Tribunal referenced the expert evidence of Mr Meers (at [8], [14], [15]) and accordingly, at first blush, it could not be said that the material was entirely overlooked. However, particularly where, as here, there is a contest about the evidence, the duty of the Tribunal is to "engage with, or grapple or wrestle with the cases presented by each party": Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]. This is not done by merely adverting to competing evidence and then simply preferring one version over another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187.
At least in a case such as this, where a request was received for a written statement of reasons, it should be clear on the face of the written reasons whether the duty to evaluate the evidence has been complied with or not. Compliance (or non-compliance) with the requirement to evaluate the evidence will be exposed in a case where the Tribunal has satisfied the requirements of s 62 of the NCAT Act. Section 62, relevantly, requires a decision maker to set out: (a) the findings on material questions of fact (including references to the evidence); (b) the Tribunal's understanding of the applicable law; and (c) the reasoning process leading to the Tribunal's conclusions. Whether the statutory requirements have been satisfied would raise a question of law: in Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 leave to appeal on a question of law was granted in respect of a failure to comply with s 62 of the NCAT Act, which was described as an error of law, at [59] and see too at [90].It is noted that in other contexts, whether adequate reasons have been provided raises a question of law: see for example Styles v Rowley [2023] NSWSC 1053 at [77] (in relation to a decision of the Local Court of NSW).
We are therefore satisfied that the appellant may appeal as of right on whether there has been a breach of procedural fairness in failing to consider the expert evidence of the appellant and whether the Tribunal has provided adequate reasons.
The third and fifth grounds concern the weight to be given to the evidence. On balance, we see this as inviting a review of the merits and not raising a question or questions of law. However, we have come to this view cautiously. As was recently explained in AW v WW at [58] there is a threshold beyond which such grounds raise a question of whether there has been unreasonableness in decision making or constructive failure to exercise the jurisdiction or whether the decision maker has taken into account relevant or irrelevant matters, thus engaging principles, respectively, in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680, Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 98 ALJR 196 at [25] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42.
The other grounds do not disclose questions of law.
[6]
Leave to appeal
The appellant has sought leave on the basis that the General Member, at first instance, erred in deciding the case against the weight of evidence and in a way that was not fair or equitable. However, as mentioned above, before leave may be given the Appeal Panel must be satisfied that there has been a substantial miscarriage of justice caused by one of those matters.
Plainly, in order to make out a case that the Decision is against the weight of the evidence, the Appeal Panel would need to be taken to the totality of the evidence before the Tribunal and have our attention directed to all the relevant aspects of the evidence. This would include having our attention directed to the evidence both for and against the various propositions. As neither party was legally represented, this process did not occur. Instead, the Appeal Panel was provided by the appellant with an audio file of the hearing at first instance and a transcript of some select and very brief references from the audio file. In some cases, this may be insufficient for the Appeal Panel to deal with such a ground. However, here, the appellant confirmed that it had identified all the relevant transcript references. Taking these references at their highest and weighing them against the respondent's lay and expert evidence, the Appeal Panel is not satisfied that the findings were necessarily against the weight of the evidence or necessarily not fair and equitable. The experts were diametrically opposed; but at least on the face of the material, it was open to the Tribunal to prefer either one. The real issue, which is discussed below, is whether it is apparent from the reasons why the Tribunal preferred one over the other. That is to say, this issue is bound up in the question of whether the Tribunal gave adequate reasons and whether the Tribunal evaluated the evidence. Accordingly, leave to extend the appeal to the merits is refused.
[7]
Further Evidence
In the event the Appeal Panel granted leave to appeal, or if the appeal was as of right, then in reply to the appeal, the respondent sought to adduce further evidence on the appeal concerning damage to other vehicles. It was said that it only came to his attention after the hearing that other vehicles had suffered similar damage.
By s 80(3) of the NCAT Act, the Appeal Panel may deal with an internal appeal by way of a new hearing and receive fresh evidence or evidence in addition to or in substitution for evidence received at first instance. However, the receiving of this evidence would be predicated on the Appeal Panel first deciding to deal with the appeal by way of a new hearing, which we have not done.
Further, here, the evidence goes to the question of whether this type of damage was commonplace, even for vehicles not supplied by the appellant. This might support a claim that the wind fairing was not fit for purpose or itself faulty, but that was not a claim that was run at first instance.
We decline to admit the further evidence.
[8]
The Evidence at First Instance
At first instance, each party called an expert.
Mr Meers for the appellant was described by the Tribunal as being a valuer and auctioneer and was accepted as having assessed vehicles and their condition, though not having any specific panel beating experience. He was cross examined at the hearing and his report was received in evidence. Before writing his report, he had physically inspected the vehicle and watched a demonstration by the respondent of the movement of the wind fairing after the respondent had loosened the bolts for the purpose of the demonstration. He said at [7]:
In any case, the wind fairing did not touch the roof during the demonstration.
He also said at [8] and [9]
If the loose fitting of the roof platform caused any contact to the centre of the roof turret, it must also have contacted the roof at each bracket along the entire 1.5 metre width of the fairing, causing damage at all five points. No such damage exists.
This damage has likely occurred by downward pressure on the fairing at only the centre bracket. For instance, this could have happened due to cargo on the roof platform being loaded incorrectly, and placing downward pressure only at the centre of the fairing…. I can confidently state it was not from movement of the platform in the demonstration I witnessed.
Mr Consalvi was called for the respondent. Mr Consalvi has worked in the motor vehicle and smash repair industry for over 43 years including as a Tradesman Motor Mechanic and Estimator for the Automotive Mechanical and Smash Repair business he co-owned. He was not available at the hearing and was not cross examined and he had not physically inspected the vehicle but rather had prepared his report on the basis of instructions and photographs and video.
By his letter of instruction dated 23 July 2023, he was asked to assume as follows:
(b) The vehicle was being driven by Adam Shepherd from the Dealership in Bega NSW to his home … when he noticed the roof platform was not secure as it was rattling and the front plastic wind deflector was bouncing on the front roof panel.
(c) The front wind deflector impacting on the roof panel has damaged the surface coating."
At [14] of his report he said:
I have no doubt the three markings on the front centre of the roof panel have been caused by contact with the centre wind deflector bracket. This could only have occurred if the bolts holding the roof platform were not tightened.
Mr Consalvi was not informed in his letter of instruction that the damage was not discovered for months after the drive home, nor that the vehicle had done more than the average kilometres nor was he cross examined about the possible effect of taking the wind fairing on and off and operating the vehicle under various loads.
[9]
Consideration
As extracted above, the Tribunal found that, on delivery, three nuts on the roof platform were loose and caused significant vibration and movement of the platform rack up and down. The Tribunal also found that even though the wind fairing, in its stationary position, did not touch the roof, the loose nuts would have caused significant vibration and up and down movement of the platform and flexing of the wind fairing. It is apparent from the extract that the Tribunal concluded that the wind fairing impacted the roof and caused the damage and that this damage was due to the movement of the wind fairing during the initial drive home, due to the loose bolts.
Whilst Mr Meers did not observe the vehicle as it was moving, his opinion is directly in contrast to the findings made by the Tribunal. There is no analysis by the Tribunal of why the evidence of Mr Meers was rejected. Further, Mr Consalvi and Mr Meers were also at odds and there is no analysis of why the opinion of Mr Meers was not to be preferred to that of Mr Consalvi's. There is no explanation as to why the evidence of Mr Consalvi, implicitly at least, was preferred; especially when he did not inspect the vehicle, was given very limited instructions about the use of the vehicle and was asked to assume the ultimate issue of what caused the damage. Further, as revealed by the extract above, the Tribunal made some assumptions about how the wind fairing would have operated on a moving vehicle and the basis of those assumptions is not exposed.
We note that the Tribunal is under significant work pressure and accept what was said by Bell P (as the Chief Justice then was) in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [70] that allowances must be made when reviewing the adequacy of reasons and that we must concern ourselves with the substance of the reasons and whether there is an adequate level of detail. Here, we are not satisfied that the reasons comply with the requirement, in s 62(c) of the NCAT Act, to set out the reasoning process that led to the Tribunal's conclusions; including the reasons that led the Tribunal to prefer Mr Consalvi's evidence (assuming that to be the case) and to reject the evidence of Mr Meers. The reasoning of the Tribunal has not been exposed. We note that Mr Meers did not observe the vehicle in motion and certainly not whilst it was moving at highway speeds; but the Tribunal has not explained whether this underpinned the reasoning for rejecting the opinion of Mr Meers. Further, the Tribunal has not identified whether the effect of the passage of time and use of the vehicle has been considered, nor how that might have affected the conclusion and nor has the Tribunal explained how the opinion of Mr Consalvi has affected the Tribunal's conclusion (if at all).
We therefore find that the appellant has succeeded in demonstrating an error of law and the appeal will be allowed.
In circumstances where the parties have not provided a full transcript of the hearing at first instance, nor addressed us on it, it is not possible or appropriate for the Appeal Panel to determine the application for itself. Accordingly, the proceedings will be remitted to the Consumer and Commercial Division of the Tribunal, for determination.
In Chapman v Nicolosi [2023] NSWCATAP 44 and then in Chapman v Nicolosi (No 2) [2023] NSWCATAP 73, the Appeal Panel considered the factors that might be relevant when considering whether a matter should be remitted to the Tribunal, differently constituted. Relevantly, the power to remit to a differently constituted Tribunal should be exercised sparingly and only if the interests of justice require it. Costs and convenience to the Tribunal and the parties are plainly relevant factors and would weigh in favour of remittal to the same Tribunal. In Chapman v Nicolosi, however, the interests of justice required the matter to be remitted to a differently constituted Tribunal because the Tribunal had determined the ultimate issue on the basis of an adverse credit finding. Here, due to key aspects of the evaluation of the evidence being opaque, we cannot know whether the ultimate issue was affected by credit findings. The Tribunal impliedly rejected the evidence of Mr Meers that the wind fairing could not touch the roof (and therefore could not damage the roof) even with the bolts loosened. Further, one of the relevant factors is whether a reasonable person in the shoes of an aggrieved party may think the rehearing was "worthless" or that the Tribunal will be perceived to have pre-judged an issue (Chapman v Nicolosi (No 2) at [20(10)] and [21(4)]) Accordingly, to avoid an apprehension of bias, we will remit the matter to a differently constituted Tribunal.
In view of the amount in question we would have been reluctant to allow further evidence if we had considered it appropriate to determine the proceedings ourselves. However, we will not make any direction in that regard. Any application by either party to lead further evidence on the rehearing may be determined by the Consumer and Commercial Division.
[10]
Orders
1. The appeal is allowed.
2. The orders made by the Tribunal on 6 September 2023 are set aside.
3. The proceedings are remitted to the Consumer and Commercial Division, differently constituted, for determination.
[11]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
[12]
Amendments
08 March 2024 - Amended catchwords on coversheet.
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Decision last updated: 08 March 2024