1. The applicant's application for appeal is dismissed.
2. The order made on 16 August 2023 staying, until further order, the orders of 19 June 2023 by the Original Tribunal, is set aside accordingly.

1. This is an appeal from a decision of the tribunal (the Original Tribunal) in Khan v Filardo Ercan Arcitects Pty Ltd (Civil Dispute) [2023] ACAT 35 (the Original Decision), published 19 June 2023. The appeal was heard by this Tribunal on 13 November 2023 under the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
2. The parties to the original application and the appeal are client and architect respectively. Briefly stated, the applicant, now appellant, says that the respondent beached the Australian Consumer Law (ACT) on the grounds that it failed to provide house design services with due skill and care and/or in a reasonably timely way.[1] The respondent counterclaimed for an unpaid invoice said to be owing under the contract. The Original Tribunal ordered the appellant to pay the respondent $6,270 and interest upon an unpaid invoice for house design services.
3. On 11 July 2023, the now appellant filed an application for appeal against the original decision and orders, seeking they be set aside upon the grounds of various alleged errors, which are indicated below.
4. In the reasons below, a reference to 'ACAT' or 'tribunal' refer to the ACT Civil and Administrative Tribunal generally, whereas 'Appeal Tribunal' or 'Tribunal' refers to the presently constituted tribunal. When discussing the first instance decision, the Tribunal uses the expressions 'Original Tribunal' and 'Senior Member'. In the Original Proceedings, the appellant was the applicant, and the appellant respondent was the respondent.

1. This appeal proceeded as a 'review' or 'rehearing'[2] under section 82(1)(b) of the ACAT Act.
2. This means that the role of the Tribunal is to undertake a thorough review with a view to determining whether the Original Tribunal fell into an error of law, made a finding of fact that is clearly in error, or exercised a discretion on a wrong principle or in a way that is clearly wrong and that the error affected the result.[3]
3. At the commencement of the appeal, the appellant sought to admit several additional emails as 'fresh evidence' as to matters regarding:

(a) solar encroachment;

(b) the respondent allegedly providing the applicant with "misleading/false information regarding regulatory requirements during the design process";

(c) certain communications about "sustainability"; and

(d) evidence of the applicant still owning the relevant block of land.

1. The Tribunal usually only allows fresh evidence in exceptional circumstances, but in this case the respondents did not oppose the appellants being given leave to rely upon fresh evidence, and, accordingly, the Appeal Tribunal granted leave for the appellant to rely upon:

(a) an email between the parties of 14 November 2021, 2 February 2022 and 28 February 2022; and

(b) a rates notice, confirming the applicant owned the relevant property as at 15 September 2023.[4]

(a) the oral submissions from both parties to the appeal;

(b) their written submissions;

(c) the additional evidence as to which leave was granted;

(d) all the appeal materials before the Tribunal, including:

(i) the applicant's application for appeal;

(ii) the applicant's submissions dated 18 September 2023;

(iii) the respondent's submissions in reply;

(iv) the respondent's response to the application for appeal;

(v) the authorities relied upon by the applicant and by the respondent; and

(vi) the documents, transcript, reasons for decision, and orders before the Original Tribunal.

1. The background to this matter is set out in paragraph [11]-[22] of the Original Decision. We adopt the Original Tribunal's summary of the evidence before it as set out in those paragraphs.
2. At the appeal, the applicant represented himself and the respondent company was represented by Mr Filardo and Mr Ercan. The Appeal Tribunal reserved its decision.

1. The appellant submitted that the Original Tribunal make a series of errors of fact and law in that it:

(a) Failed to take a "holistic" view of the alleged impact on the appellant of alleged multiple failures by the respondents and, in particular, in dealing with the issue of whether there was a "major failure" under section 268 of the Australian Consumer Law (ACL).

(b) Erred as to the status of the applicant's "client's brief" by finding that certain elements of it were not objectively clear and would be subject to the architect's interpretation. In this regard, the Applicant placed particular reliance upon the case of Christian Education Ministries Qld Ltd v Thomson Adsett Pty Ltd (Christian Education Ministries),[5] a case which, he contended, placed the obligation on the respondent to clarify any uncertainties in their instructions;

(c) Erred by finding section 61(4) of the ACL operated so as to exclude his claim for breach of section 61(2) of the ACL;

(d) Erred in applying the familiar principles about due care and skill: the applicant cited Voli v Inglewood Shire Council (Voli)[6] in particular, by failing to appropriately consider whether the respondents had "exercised the requisite skills".

(e) Erred by "suggesting" that the involvement of the applicant as client hampered the delivery of the plans or the respondent's "aesthetic and design ideas".

(f) Erred by not finding the respondent's evidence in relation to the solar issue to be "misleading and inconsistent" and not consistent with regulatory requirements, and erred in finding that responsibility for "possible breakdown of communication" lay with the respondent, that the Original Tribunal failed properly to consider timing issues as to the matter of solar encroachment, and that the respondent was negligent.

(g) Erred in its "suggestion" that the applicant's interests as client could perhaps have been better met by a building designer and, in particular, the applicant contended that the respondent ought to have "advised us to look elsewhere, but they did not".

(h) Erred in its finding that "the project brief was not sufficiently clear for [the Respondent] to follow", relying again Christian Education Ministries.

1. Those grounds were set out in Attachment A to the applicant's application for appeal, and they were augmented and amplified by the applicant's documents headed "List of Errors" and "Submissions", both dated 18 September 2023.
2. The respondents largely relied upon the reasons of the Original Tribunal, which they stated they considered correct.

1. In regard to the alleged grounds of appeal above, this Tribunal finds no error by the Original Tribunal. The considerations and conclusions upon fact and law, as articulated at paragraphs [1]-[26] and [27]-[85] of the reasons for decision given by the Original Tribunal, are, in our view, entirely correct ones.
2. As to the applicant's contention that the Original Tribunal failed to take a "holistic" view of the alleged issues and misapplied section 268 of the ACL, that the Original Tribunal erred in finding the "client's brief" was not objectively clear, and that the Original tribunal erred in applying section 61(4) of the ACL, we consider that there is no gainsaying that what is stated in paragraphs 29 to 38 of those reasons - about the operation of sections 60, 61, 62, 64, 267, 268 and 269 of the ACL in this situation - is correct. Notably, sub-section 61(4) of the ACL clearly provides for the express exclusion of engineers and (relevantly here) architects from the guarantee in section 61 of the ACL. Accordingly, the manner in which the Original Tribunal approached the exclusion in section 61 of the ACL and as to the material before the Original Tribunal respectively, is, in our view, correct.[7] Upon our review in these proceedings, no error or fact or law, or of discretion is disclosed calling for intervention by this Tribunal. Likewise, what the Original Tribunal indicated at [63] to [67] as to the issue of "major failure" is correct upon the law and its proper application to the facts of the case before the Original Tribunal.
3. As to the applicant's contention that the Original Tribunal erred in applying the principles of due care and skill, erred by "a suggestion" that the involvement of the applicant hampered the delivery of the plans, and erred in considering solar encroachment, this Tribunal considers there is nothing in the reasoning and decision of the Original Tribunal which is inconsistent with the proper application of the law (including the principles in Voli) to the facts of this case. We consider the Original Tribunal did indeed properly consider that the respondent "brought an appropriate level of skill to Mr Khan's project".[8] The observations, findings and reasoning of the Original Tribunal, especially as set out at [39] to [67] of its reasons, are compelling and correct in our view. In particular, we agree with the Original Tribunal's conclusion that "Mr Khan has not met the burden that lies on him to establish a failure to exercise due care with respect to solar encroachment".[9] We also agree with the reasoning and findings as to the addressing of "sustainability issues" and related matters, as expressed at paragraphs 68 to 82 of the reasons of the Original Tribunal.
4. We note here that it is not unusual for applicants to matters before the Tribunal to not engage an expert to give evidence. We understand that this may, at least in part, be because the costs involved are disproportionate to the claim, and even if successful, the applicant is unable to recover those costs by way of an order of the Tribunal. The ACAT Act specifically provides that the rules of evidence do not apply[10], and the tribunal may inform itself in any way it considers appropriate in the circumstances[11] and this allows a degree of flexibility, particularly as to the form evidence takes. In recognition of this, the Tribunal attempts to be pragmatic and sensible about the form the evidence before it takes. However, the applicant in a civil matter ultimately bears the onus of proof, and where the questions being put by the applicant go to matters of technical expertise (such as a standard expected of a professional) then discharging that onus may well require expert evidence. In this case, the appellant had none, and hence the Original Tribunal could not find for him on issues such as timeliness, the plot ratio point or the availability of the 1N process.
5. As to the applicant's contention that the Original Tribunal erred in making a "suggestion" the applicant's interest as a client could have been better met by a building designer, and erred in concluding that the project brief was not sufficiently clear, we consider the Original Tribunal made no error of fact or law, nor any error of discretion. In particular, we consider the applicant's reliance on the decision of Christian Education Ministries as unfortunately misconceived, as the issues were different there. Samios DCJ was dealing with a distinctive instance in which the particular evidence accepted by the District Court was that the party had, in fact, given "an instruction to the architect that the design was to include a full-sized basketball court" and the architect there gave "no satisfactory explanation for why the words 'full-sized basketball court' were placed on this drawing".[12] The principles as applied in that case do not gainsay or call into question the decision of the Original Tribunal. This Tribunal has afforded both the applicant and respondent full opportunity to present their submissions in the hearing, but none of the applicant's submissions have demonstrated any error.

1. For all of the reasons indicated above, this Tribunal concludes that the Original Tribunal was correct in its decision, both as to the facts and the law, and as to the application of the law to the facts before it. The applicant has not demonstrated any error of fact or law, nor any discretionary error, by the Original Tribunal at first instance.[13]
2. We agree with the outcome indicated by the Senior Member at paragraph 83 of the reasons dated 19 June 2023. We also agree with the observations as made at paragraphs 84 and 85 of those reasons about the unfortunate nature of the matter, as well as filing fees and costs, respectively.
3. The applicant's appeal must be dismissed and, therefore, we so order. Accordingly, the order made on 16 August 2023 staying, until further order, the orders of 19 June 2023 by the Original Tribunal, must also be lifted and, hence, we so order.

Mr Ercan and Ms Filardo, authorised representatives

[1] Note, per section 7 of the Fair Trading (Australian Consumer Law) Act 1992, the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), including any regulations under that Act, applies as a law of the ACT jurisdiction and is to be referred to as the Australian Consumer Law (ACT).

[2] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]- [37], quoting The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]- [14]

[3] See discussion in Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34 at [7] and Zeng v Crane [2022] ACAT 70 at [28], citing, among others, The Owners - Unit Plan no 1475 v Davidson [2022] ACAT 10 at [5] and Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

[4] Transcript of proceedings dated 13 November 2023, page 11, lines 18-29

[5] [2015] QDC 292

[6] [1963] HCA 15

[7] See Original Decision, see especially at [37]-[38]

[12] Christian Education Ministries at [40]

[13] House v The King [1936] HCA 40; Warren v Coombes [1979] HCA 9