Khan v Kang

The Notice of Appeal 13The appellant lodged her notice of appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) on 17 June 2014. 14The Tribunal's notice of appeal form requires an appellant to list the orders which the appellant seeks to challenge and to state each reason why the appellant considers the Tribunal's decision to be wrong. Although the appellant did not refer to the specific order made on 20 May 2014, it was obvious to the Appeal Panel and the parties that this was the order being challenged. 15Similarly, although the grounds of appeal were clearly not drafted by a person with legal training, the Appeal Panel was satisfied, having regard to its obligation to act with as little formality as the circumstances of the case permitted and according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms (s 38(3) of the Act), that a number of grounds of appeal could be discerned. These are identified in the paragraphs which follow.

1. No Evidence to Support the Finding as to Installation of the Staircase 16The appellant stated the following in the Notice of Appeal: I am just an ordinary citizen. As per copy attached [the 3rd last paragraph of the "Reasons for decision"] refers to supply and install a staircase. I provided 29 photos of 2 levels of flooring which did not include staircase. [This was the] Only area where faults not found except [for certain work which was not the subject of the original claim]. 17The Appeal Panel takes this as an attempt to articulate the ground that the Tribunal erred in law in finding that "[t]he applicant is an owner/builder who apparently employed the respondents to supply and install a staircase" when there was no evidentiary support for that conclusion.

2. Failure to Give Reasons or to Exercise the Jurisdiction Conferred on the Tribunal 18In the Notice of Appeal, the appellant also stated "I wish to claim $800 for excessive order" and "Julian had measured excess timber & asked to order 183 sq mtr. I ordered 180 sq mtr. Now I have 122.5 meters of timber left which is excessive after installation." As noted above, the appellant had made such a claim in the home building application form when she referred in section 12 of that form to "excess timber order", quantified the amount claimed as $800 and provided calculations in the table of measurements attached to the form. 19The Appeal Panel takes what is set out in the notice of appeal as sufficient to raise as a ground of appeal that the Tribunal erred in law by either failing to give any reasons for dismissing this aspect of her claim or by failing to exercise the jurisdiction conferred on the tribunal and invoked by the appellant.

3. The Finding that her Claim was Without Evidentiary Support was Itself Evidentially Baseless 20The appellant also stated in her notice of appeal "I have provided photos and quotes from experience flooring companies. ... I had provided what I would have thoughts evidence to proof the condition and poor workmanship ... It seems unfair when rectification work has to be carried out." Similar matters were raised elsewhere in the notice of appeal. 21Whilst the Appeal Panel accepts that this is not in the section headed grounds of appeal and it is not formulated as a ground of appeal, the Panel is satisfied that it raises a ground of appeal that the Tribunal erred in law in finding that the appellant's claim was without evidentiary support, as it did in concluding that "without any evidence to support her claim, the findings of the Tribunal are reflected in the order made [dismissing her claim]", when such a finding was itself evidentially baseless, given the evidence put forward by the appellant.

1. No Evidence to Support the Finding as to Installation of the Staircase 22Whilst there are very few findings of fact made in the reasons for decision, the Tribunal below did find that "[t]he applicant ... apparently employed the respondents to supply and install a staircase". 23The parties did not contend that the appellant ever engaged the respondents to install a staircase. The Appeal Panel has reviewed the material before the Tribunal at first instance and there is no material to suggest that the respondents were retained to install a staircase. The quotation of 6 August 2013 was for the installation of a timber floor and included such items as "Batten Install", "timber Install", "coatings (U45)" and "stairs" and the area to be covered was quoted as a total of 183 sq metres. It is not credible to suggest that the stairs formed all or even a majority of the area of 183 sq metres. The photographs submitted by both parties showed extensive timber flooring installed on floors in various rooms and some timber on a staircase, the structure of which was apparently pre-existing. 24There was in the Appeal Panel's view simply no evidence before the Tribunal to support the finding made that the appellant retained the respondents to supply and install a staircase. On the material available, such a conclusion was not reasonably open. 25It is well established that a tribunal which decides a question of fact when there is no evidence in support of the finding makes an error of law - see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] and the cases there cited. Consequently, the Appeal Panel was of view that the appellant must succeed on this ground of appeal. 26The circumstances of this case are unusual. The Tribunal below fundamentally misunderstood the nature of the work to be done by the respondents for the appellant so that any conclusion it reached would be unsound and could not be allowed to stand. The Tribunal, however, made no other findings as to whether, when and how any work was done and whether or not it was defective or incomplete. In these circumstances, the most appropriate course is for the Appeal Panel to remit the whole of the proceedings for rehearing in the Consumer and Commercial Division.

2. Failure to Give Reasons or to Exercise the Jurisdiction Conferred on the Tribunal 27In addition to the claim for defective or incomplete work, the appellant claimed $800 in respect of what she alleged was excess timber that she had been required to order as a result of the mismeasurement or misquoting by the respondents. The Tribunal below dismissed the entirety of her claim in the order made on 20 may 2014 but did not refer to this excess timber claim at all in the reasons for decision. No evidence was reviewed concerning it. No findings of fact were made. No exposition of the relevant law was given. No application of the law to the fact can be found in the reasons for decision. The Tribunal below simply dismissed the application in its entirety. 28It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its reasons for decision amounted to an error of law by the Tribunal below. On this ground, the appeal should be upheld and the order in so far as it dealt with the excess timber claim should be set aside. This aspect of the appellant's application should also be remitted to the Consumer and Commercial Division for rehearing. 29It can also be noted here that the statement of reasons did not address the appellant's claim that she was entitled to reimbursement for a period during which there was delay in the completion of the work with the consequence that the appellant was denied access to her home. Although this was not explicitly raised in the notice of appeal, so far as the Appeal Panel could determine, in the interests of justice there does not appear to be any reasons why this claim should not also be remitted along with all the other claims in the circumstances.

3. The Finding that her Claim was Without Evidentiary Support was Itself Evidentially Baseless 30The Tribunal at first instance stated "without any evidence to support her claim, the findings of the Tribunal are reflected in the order made [dismissing her claim]". There was, however, quite a deal of evidence which could potentially support the appellant's claim. 31Without making any findings as to whether any such evidence should be accepted, the Appeal Panel could identify the following evidentiary material which was before the Tribunal below and which could be relied upon to support her case: (1)the quotation of 6 August 2013 which sets out the work to be done and the amount of timber required; (2)the statutory declaration of the appellant declared on 3 April 2014 which identifies10 dot points of defects or items of rectification which were said to be necessary because of the incomplete or unsatisfactory work; (3)the 29 photographs relied upon by the appellant which arguably indicated some matters which might amount to defects or incomplete work; (4)the 3 quotations which refer to various matters such as "Not proper colour of putty, unfinished sanding - visible ripples Rough surface - excessive dust.", "Repair 3 creaking stairs, Repair sill of back door ..." and "Reinstall the one piece of timber on the doorway The price incl floor preparation, punched down the nails, fill up and refill Puddy (same colour) on the timber floor as necessary"; (5)the table of calculations of room sizes which might establish that the quotation involved an overestimation of the timber required. 32Indeed, the respondents themselves understood that there was a case made against them on the evidence of the appellant and responded in their documents filed in the Tribunal. In particular, the document headed "Responding to Complaints" (marked P13 and consisting of 2 pages) provided a response to each of 9 complaints that they had been able to identify as follows: "1. Unfinished sanding ... 2. Visible ripples ... 3. Rough surface &excessive dust on polished floor ... 4. Repair 3 creaking stairs ... 5. Repair Floor (back entry way) ... 6. Prepare unmatched colour putty ... 7. Prepare areas where holes not filled ... 8. Titan etc [this refers to the product used to coat the floors] ...9. One of the excesses [excuses?] used to delay work etc ...". 33Thus, the Appeal Panel was satisfied that the finding by the Tribunal at first instance that the appellant's claim was without evidentiary support was wrong. That is not to say that the evidence relied upon by the appellant should have been accepted. Rather it was wrong to conclude in the circumstances that the claim in its entirety should be dismissed on the basis that it was "without any evidence to support [it]". The approach of the Tribunal below was misconceived and its conclusion involved an error of law. 34This ground of appeal having been made out and given the nature of the error, it was also appropriate to remit the whole of the appellant's claim to the Consumer and Commercial Division for rehearing.

Conclusion on the Appeal 35For the reasons given above, the Appeal Panel upheld the appeal set aside the order made by the Tribunal below on 20 may 2014 and remitted the whole of the proceedings to the Consumer and Commercial Division for rehearing. 36It is, however, appropriate to make some additional comments on the duty to give reasons for decisions in the Tribunal.

Section 62 of the Act 37The written reasons for decision at first instance in this matter stated "These reasons have been compiled to comply with section 62 of the NCAT Act 2013". Those reasons for decision did not comply with that section. 38Section 62 of the Act provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. [as to both law and fact] (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. 39The section thus establishes a mechanism whereby a party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision. The section also expressly provides that nothing prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision even if no request is made under s 62(2). 40Section 62(3) also provides a useful summary of what oral reasons or a written statement of reasons are to contain, namely: (1)the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings were based; (2)the Tribunal's understanding of the applicable law; (3)the reasoning processes that led the Tribunal to the conclusion it made. 41The reasoning processes referred to in s 62(3)(c) include the reasoning by which the law was applied to the facts as found to reach all intermediate and ultimate conclusions. It is important to bear in mind, however, that these reasoning processes also encompass the reasoning which led the Tribunal to reach its factual conclusions: why certain evidence was accepted and other evidence rejected; why a factual conclusion was reached; and similar matters.

The Common Law 42Section 62 of the Act is not, however, the sole source of the obligation to give reasons for decisions. There is a common law duty to give reasons "apart from any express requirement of any statute" - Pettitt v Dunkley [1971] 1 NSWLR 376 at 387. The duty applies to the Tribunal as well as to courts - Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at [109]ff and the ADT Appeal Panel decision in Supermarkets Pty Limited v Xu [2009] NSWADTAP 28. In Supermarkets Pty Limited, the Appeal Panel of the ADT said at [56]: 56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that include Soulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan (2006) 67 NSWLR 372, esp at [109] ff Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; Dornan v Riordan (1990) 24 FCR 564 at 568; Edwards v Guidice (1999) 169 ALR 89 at [10], [43]. 43There are two bases identified in the authorities for the imposition of this duty. First, it facilitates a litigant, who may be aggrieved, exercising rights he or she may have to appeal and thus ensures that any appeal right is not rendered nugatory or illusive - Pettitt v Dunkley [1971] 1 NSWLR 376 at 387. 44Secondly, reasons are required since a failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: see Keith v Gal [2013] NSWCA 339 at [109], citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442. 45A general discussion of reasons for decision in the context of the Tribunal is found in the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 [43] to [64]. As part of that discussion the Appeal Panel drew attention to the qualifications on and flexibility in the obligation to give reasons for decision at [57] as follows: 57 A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56]; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. 46These qualifications or limitations do not, however, provide a justification for failing to meet the requirements of s 62(3) where reasons are given. They do, however, indicate that the extent of the Tribunal's reasons for decision should reflect the nature, subject matter, complexity and importance of the proceedings. Small, short and simple claims do not require elaborate reasons for decision.

The Reasons for Decision in the Present Matter 47The reasons for decision in the present case require some further comment in addition to the conclusions set out in dealing with the grounds of appeal above. Apart from observations concerning the standard and onus of proof in civil proceedings, the substance of the reasons for decision of the Tribunal below was as follows: (1)A finding that the appellant apparently employed the respondents "to supply and install a staircase"; (2)The implicit finding that the quotations relied upon to demonstrate that the work of the respondents was defective did not constitute evidence to support the applicants claim; (3)An observation that there was no building inspection report by an independent builder to demonstrate any liability of the respondents and the conclusion that the appellant's application should be dismissed for want of evidence. 48The finding that the subject matter of the claim related to the supply and installation of a staircase was, as we have noted above, not open on the evidence. The error could have been avoided if the reasons for decision had referred to the evidence upon which the finding as to the subject matter of the claim was based. If this had been done, the Tribunal's attention and the reader's would have been directed to the quotation of 6 August 2013, the photographs and other material, and it is unlikely that the Tribunal would have erroneously concluded that the subject matter of the claim related to the installation of a staircase rather than the installation, sanding and finishing of a timber floor throughout the premises. 49As to the implicit finding that the quotations did not constitute evidence to support the appellant's claim that the work was defective or incomplete, there is no reference to the evidence on which that finding was based nor are the reasoning processes in which the Tribunal engaged to reach this conclusion disclosed. It is not clear whether the quotations were thought to be unsatisfactory because they did not refer to defects or because they were quotations from people who had an interest in being awarded a contract to repair the defective work or complete any incomplete work or because of some other reason. It is not the case that a quotation to rectify or complete work can never be evidence supporting a claim for defective or incomplete work. 50A 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. 51Of course, a quotation relied upon by a party may be inadequate for these purposes but, if this is to be the Tribunal's conclusion, the reasons for rejecting the quotation must be explained in the reasons for decision. Such an explanation does not have to be lengthy especially in a claim that has only a small monetary value, but some explanation is required. This is what s 62(3) entails when it requires findings of fact to be made referring to the evidence or other material on which those findings were based and when it requires the reasoning processes that led the Tribunal to its conclusions to be set out. 52Even where a quotation is based upon assumptions as to defective or incomplete work and not the observations of the person giving the quotation, it still may be amount to evidence of an estimate of the cost of rectifying or completing the work and be relevant for that more limited purpose. Whether or not that evidence should be accepted would be a matter for the Tribunal to assess in all the circumstances of the case. 53As 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. 54Nothing the Appeal Panel has said should be taken as finding that the appellant is entitled to succeed with respect to any part of her claim. That will be determined when the proceedings are reheard in the Consumer and Commercial Division. 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. 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. Principal 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 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: 11 September 2014