Kirzner v Jetmaster Fireplaces Aust Pty Ltd

NCAT Appeal Panel|2021-05-17

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 5 February 2021.
The application to the Tribunal was brought by the appellant against each of the respondents (Jetmaster Fireplaces Aust Pty Ltd - "Jetmaster" - and Sydney Basin Plumbing Pty Ltd - "Sydney Basin Plumbing") under the Home Building Act 1989 (the HB Act). The dispute between the parties concerned the purchase and installation of a gas fireplace in May 2016.
For the reasons set out below, we have decided to refuse the appellant leave to appeal and to dismiss the appeal.

Background

The appellant contracted with Jetmaster to supply and install a gas fireplace in an existing fireplace in the main bedroom of the residence, on the first floor. The installation was carried out in May 2016. The installation was performed by Sydney Basin Plumbing under contract with Jetmaster.
According to the appellant, the use of a jackhammer in the chimney during the installation of the gas fireplace caused damage to the chimney which allowed smoke from an immediately adjacent chimney, used for a wood fireplace on the ground floor below, to penetrate into the main bedroom, making the bedroom unusable. The appellant claimed that the damage was caused by jackhammering, relying on a report prepared by Alpha Engineering & Development Pty Ltd, dated 29 December 2020, (the Alpha Report) in this regard. The respondents denied that that this occurred. The respondents' position was that smoke penetration occurred because of faulty construction of the wood fireplace by the appellant's builder during the earlier construction of the home. The respondents claimed that that the interior of the wood fireplace was not parged (that is, rendered) in accordance with the relevant Australian Standard allowing smoke penetration. Further, they argued that the external cavity wall is finished short of the plate level and allows smoke to spill into the cavities.

Tribunal proceedings and decision

The application to the Tribunal was lodged on 13 October 2020. The matter was heard on 5 February 2021. In the application, the appellant had claimed the sum of $4000. However, at the hearing he claimed $12,000.
In its decision the Tribunal first noted that the appellant's case was that the cause of the smoke penetration into the house arose from the use of a jackhammer to create an oversize penetration into the cavity wall of the fireplace, to permit the installation in the master bedroom fireplace of a gas fire. Vibration from the jackhammer was said to have created cracks and voids through which smoke from the wood fireplace could penetrate the dwelling.
The Tribunal relevantly found that:

Although the Alpha report was not in the form of an expert report, it should be admitted into evidence.
There was no evidence of cracking of the brickwork of the flue, which could be anticipated if a jackhammer had been used.
There was no evidence of any deviation of the brickwork, although the Alpha Report and one of the quotes provided by the appellant allowed for replacement of an unquantified area of external brickwork.
The three quotes provided by the appellant offer different scopes of work.
The quote favoured by the appellant was essentially a quote for parging the flue, which should have been done by the contractor who constructed the dwelling.
There is no evidence of vibration of the brickwork beyond what could normally be expected when a lump hammer or the like was used to knock out brickwork that had been pre-drilled to weaken it.
Jetmaster's explanation of the back flow of the smoke over the reduced height cavity wall was on the balance of probability the most likely explanation for the smoke leak.
The use of the wood fireplace for two years, prior to the installation of the gas fire, supported the appellant's claim but could not be regarded as evidence of causation.
The appellant failed to bring credible evidence that establishes a failure by the respondents resulting in the subject of the application.

In his reasons for decision the Tribunal Member noted that the appellant claimed on several occasions that he had not been given sufficient time to advocate his case, but that at each opportunity he was given to make further submissions, the appellant repeated the claim about vibration caused by jackhammering.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated 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.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 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 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.

Submissions and evidence

In deciding the appeal, we have had regard to the following:

The Notice of Appeal lodged on 2 March 2021;
Jetmaster's Reply to Appeal lodged on 15 March 2021;
Sydney Basin Plumbing's Reply to Appeal lodged on 29 March 2021;
The appellant's written submissions and bundle of documents lodged on 8 April 2021;
Jetmaster's bundle of documents lodged on 27 April 2021;
Sydney Basin Plumbing's bundle of documents lodged on 27 April 2021;
The appellant's written submissions in reply dated 7 May 2021;
The orders made at call over on 19 March 2021;
The Tribunal's Notice of Order and reasons for decision dated 5 February 2021;
The original application lodged on 13 October 2020;
The oral submissions made by and on behalf of the parties at the hearing; and
The written submissions on jurisdiction lodged in accordance with our orders made on 17 May 2021.

Notice of Appeal

The Notice of Appeal was lodged on 2 March 2021, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The appeal was therefore lodged within time.

Grounds of Appeal

Four grounds of appeal are specified in the Notice of Appeal. The first two concern the Tribunal's alleged failure to give weight to the Alpha report as an expert report, and the Tribunal's allegedly mistaken findings of fact and conclusions which are contrary to the expert report. This is primarily a ground going to the Tribunal's fact finding process, given the expert report and the weight the Tribunal gave to it.
The third ground raises a denial of procedural fairness. In relation to this, the appellant claims that he did not have a reasonable opportunity to be heard and for his submissions to be properly considered.
The fourth ground is not a ground of appeal at all, but an assertion that having regard to the other grounds of appeal, the Tribunal failed to determine the substantive merits of the case and failed to consider the appellant's submissions concerning his entitlement to damages of compensation.
In addition, the appellant seeks leave to appeal on the basis that the decision was not fair and equitable and against the weight of the evidence.
At the hearing, the appellant confirmed that In essence, his case on the appeal is that the Tribunal erred by: 1. Not giving sufficient weight to the Alpha Report; and 2. Not giving him a fair hearing.

Jurisdiction

As noted above, the gas fireplace that is the subject of the application was installed on 1 May 2016. The application to the Tribunal was lodged on 13 October 2020, more than four years later. In the intervening period, the respondents undertook some further work in an attempt to rectify the issue with smoke penetration. However, it is clear that the appellant claims that the damage was caused on installation of the fireplace on 1 May 2016 and that he became aware of it in the first days of May 2016.
The Tribunal's jurisdiction under the HB Act is set out in s 48K. This section relevantly provides: 48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). (2) The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section. (3) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made). …. (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). …..
Section 18E of the HB Act sets out the statutory warranty periods which apply in the case of building claims in which the cause of action is breach of one of more of the statutory warranties set out in s 18B of the HB Act. Section 18E relevantly provides: 18E Proceedings for breach of warranty (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions - (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), …… (4) In this section - major defect means - (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause - (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building, or (b) a defect of a kind that is prescribed by the regulations as a major defect, or (c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act. ….. major element of a building means - (a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or (b) a fire safety system, or (c) waterproofing, or (d) any other element that is prescribed by the regulations as a major element of a building.
In its reasons for decision, the Tribunal made no finding as to whether the application to the Tribunal had been brought within the time periods set out in s 48K and 18E of the HB Act.
As the application was lodged more than four years after the gas fireplace was installed, it appeared to us that the application may be out of time unless the allegedly defective work can be characterised as a major defect. We raised this issue with the parties during the appeal hearing. The appellant indicated that the affected wall is load-bearing and there is a major defect. The respondents submitted the contrary. As this was not an issue the parties had been asked to address previously, we made orders for the filing and exchange of submissions on the jurisdiction.

Submissions on jurisdiction

The appellant in written submission restated his earlier oral submissions. He submitted that the defect is in a major element of the house, namely the internal wall of a double brick load bearing wall that was essential to the stability of the home or part of it, through which the flute penetration from the gas heater had been installed. He submitted that the defect was the result of faulty workmanship by the respondent, "namely the use of a hammer drill with chisel/jackhammer and hammer, to create the opening for a gas flute pipe." This, the appellant argued, resulted in the bedroom being unable to be used for its intended purpose, due to the carbon monoxide gases and smoke entering the bedroom through the chimney wall.
In its submissions on jurisdiction the respondents argued that there was a major defect in the chimney due to defects in its original construction.

Conclusion on jurisdiction

The Appeal Panel considers that the claim as made by the appellant is one with respect to a major defect, but for different reasons than those advanced by the appellant. We do not think that there is sufficient evidence to enable us to conclude that the internal wall of the chimney was essential to the stability of the home or part of it. The fact that it is load-bearing does not demonstrate essentiality.
In our view the chimneys of the appellant's home form part of the fire safety system. If the allegations of faulty workmanship and resultant damage are made out, then the damage would constitute a major defect. The Tribunal therefore had jurisdiction to hear the claim.

Issues

The issues to be determined in the appeal are: 1. Did the Tribunal give insufficient weight to the Alpha Report? 2. Was the appellant denied procedural fairness? 3. Should leave to appeal be granted?

Did the Tribunal give insufficient weight to the Alpha Report?

The Alpha Engineering & Development Pty Ltd Report was written by Jean Jose Mauad, its Managing Director, and is dated 23 October 2020. Mr Mauad describes himself as a Senior Structural and Civil Engineer and provides his qualifications in the signature block to his report.
The Alpha Report does not comply with the Tribunal's Practice Direction No 3 Expert Evidence. This was noted by the Member hearing the application, who nonetheless admitted it and treated it as an expert report, without objection from any of the parties.
As Mr Mauad had not seen the gas fireplace installation before he inspected it for the purpose of preparing his report and had no prior involvement in the matter. It would appear that he obtained the history outlined in his report from a source which he has not identified. Expert reports are required by the Practice Direction to identify, "the facts, and assumptions of fact, on which the opinions in the report are based."
Throughout the Alpha report Mr Mauad asserts that the penetration for the gas fire was created by using a jackhammer to create it, thereby damaging the chimney wall directly below where the gas fireplace was installed and above the wood burning fireplace on the floor below. There are two versions of the Alpha Report among the materials before us. The first is dated 23 October 2020 and is 4 pages long. The second is dated 29 December 2020 and is 5 pages long. The difference between the two is that the 29 December 2021 report contains four additional comments under the heading, "Below are our comments regarding the installation of the penetration through the chimney stack internal wall." Without those comments, the 23 October 2021 report contained no observations by the author relating to evidence of jackhammering.
In summary those comments say: 1. No core drill marks were observed on the bricks. The brick perimeter of the penetration was roughened by "jack hammering or hammer blows". There is then a photo of the penetration. 2. The penetration is itself too large extending 200mm on either side beyond the required opening. 3. The damage to the bricks by the penetration suggests "the hammering was undertaken from the inside." It should have been made by drilling core holes externally. 4. The fact that the chimney is made from extruded brick work and had not leaked prior to the installation of the gas fireplace led to the conclusion that, "the damage to the brick work during the installation of the penetration by impact hammering has led to the chimney smoke leaks through the cavity and into the house."
There is no reference to those comments in the Member's decision, which points to the Member having considered the first report from Mr Mauad only. The second version report is attachment 48 to the appellant's written submission on appeal. According to paragraph 2 of the submissions: The appellant's evidence before the Tribunal included his statement dated 15 December 2020 which attach documents numbered 1 to 47.
There is therefore a question as to whether the second version of the Alpha report was actually before the Member. This is important as the first version does not disclose any observation or contain any explanation of how Mr Mauad concluded that a jackhammer had been used in the installation of the gas fire. Mr Mauad did not identify the basis on which he concluded that the penetration in the chimney wall had been jack hammered. He did not point to anything associated with the work which led him to conclude that a jackhammer had been used. Rather, he simply asserted that a jackhammer had been used, without providing an explanation of what led him to that conclusion. It is a bare conclusion - a bare ipse dixit - that is fundamental to and underlies the opinion expressed in in his report.
In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Mc Coll JA explained that - 130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that "[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it". In so saying, I referred with approval (inter alia) to Heydon JA's analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] - [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper's statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that: "… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert."
In contrast, the second version of the Alpha report indicates that Mr Maud considered that the absence of drill marks around the penetration and the roughening of the bricks, at that site, point to a jackhammer having been used. As we cannot determine which version of the Alpha report was before the Tribunal, we have, in fairness to the appellant, proceeded on the basis that it was the second version.
The Tribunal also heard evidence from Mr Brownlow, from Sydney Basin Plumbing, who installed the gas fireplace. His evidence was that he made the opening in the brickwork by using an 8mm drill, to form a ring of holes sufficiently closely spaced, so that he could knock a hole in the brickwork. He denied using a jackhammer. The penetration was made internally. He denied damaging the chimney by using a jackhammer to create the penetration.
The Tribunal also had before it the notes prepared by Mr Pearce, head technician, from Jetmaster. He had visited the appellant's home on three occasions. On each occasion he tested for evidence of carbon monoxide. On the first occasion a testing probe was inserted into the void behind the gas fire and recorded 8ppm of carbon monoxide. On the second occasion, in November 2019, the void in the chimney with the gas heather was filled with vermiculite. No fumes were detected when the wood fire was on. On the third occasion in August 2020, "2ppm were detected on top of the wardrobe [in the bedroom] which increased when the air conditioning was on".
Mr Belnick, the managing director of Jetmaster, told the Tribunal that he believed that the chimneys were not properly constructed in accordance with the BCA. They were not parged with 10mm of render, thereby allowing gases to escape through gaps in the mortar. Further, the cavity wall was finished short of the plate level, allowing smoke and gases to spill into the cavities of the dwelling before they exited the chimney.
Jetmaster also relied on a letter from Mark Steuerwald from London Chimney Sweeps dated 17 December 2020 which pointed to a number of problems with the fireplace including that: 1. the chimney stack is too low to allow proper ventilation and avoid blowback (photo of chimney stack); 2. the chimneys open under one common cover which allows spill over between them (photo); 3. the internal side cavity wall which separates the chimneys terminates approximately 10 courses of brick down from the chimney top (photo), allowing overflow and spilling of smoke and fumes; 4. the chimneys were not lined or parged; 5. internal bricks used in the chimney are hollow; and 6. a photo of the chimney looking down on the gas fireplace shows no evidence of smoke stains or damage to the bricks and mortar.
There were also before the Tribunal various photographs of the gas fire in situ, the fireplace, and the chimneys, both internal and external.
How the penetration in the chimney was made is a question of fact which the Tribunal was required to determine in order to resolve the dispute.
The Member did so by accepting the direct evidence of Mr Brownlow as to how the work was done, over the opinion of Mr Maud. In doing so, the Member noted that there was no evidence of cracking of the brickwork of the flue, which would have provided some evidence that the brickwork had been loosened as theorised by Mr Mauad.
In submissions on appeal, the appellant argued that Mr Brownlow was not qualified to give an opinion as to what caused the problem with the chimney and that the only expert opinion before the Tribunal on the issue was that of Mr Mauad. The appellant submitted that the Tribunal had been bound to follow the Alpha report as it was the only expert of the issue. The appellant also submitted that evidence of Mr Belnick and Mr Brownlow, together with the reports from Mr Pearce and Mr Steuerwald, should have been given no weight as there was no evidence of their expertise, experience or qualifications.
We do not accept these submissions.
Whether or not Mr Brownlow had the experience or qualifications necessary to express an expert opinion in this case is beside the point. He gave evidence of the work he actually did when undertaking the installation. That was not evidence of opinion, but evidence of what work was done. The fact that Mr Muaud expressed an opinion that the penetration was made using a jackhammer, did not preclude the Tribunal from accepting Mr Brownlow's contrary evidence about what was really done. Further, the Member expressed the view that the absence of cracking in the brickwork - which cannot be seen in the photographs - was of importance because cracking would be expected if a jackhammer were used.
Additionally, the Member expressly rejected Mr Muaud's suggestion that the absence of smoke in or about the bedroom prior to the installation of the gas fire was evidence of causation.
In our opinion there was no error in the Tribunal preferring Mr Browlow's evidence as to how he performed the installation over Mr Maud's opinion that a jackhammer was used. It was a conclusion open to the Tribunal on the evidence before it. The fact that the Tribunal found that a jackhammer was not used in the installation process meant that the conclusions reached in the Alpha report. about the cause of the chimney leak, which were predicated on the use of a jackhammer, were not reliable. This was fatal to the appellant's case and meant that it was bound to fail.
Once the Tribunal found that there was no jackhammer used in the installation, the Alpha Report was deprived of its foundation and was therefore entitled to no weight. The Tribunal indicated that it thought the explanation of the chimney leak offered by Mr Belnick the most likely on the balance of probabilities. The Tribunal's essential finding, however, was that the appellant "failed to bring credible evidence that establishes any failure of Jetmaster that results in the issue the subject of this application."
Following that finding the appellant's claim was bound to fail.
As already noted, the appellant, in submissions on appeal, argued that the Tribunal should have given no weight to the evidence of Mr Brownlow and Mr Belnick, and to the reports of Mr Pearce and Mr Steuerwald, because there was no evidence before the Tribunal of their expertise. There is no evidence of this being raised as an issue during the Tribunal hearing.
Given the conclusion we have reached with respect to the Tribunal findings as to how the installation was performed being fatal to the appellant's case, we think it unnecessary to explore those submissions further. From the moment the Tribunal found that a jackhammer was not used in the course of installation, the Alpha report's underlying assumption failed, and the appellant's case became untenable.

Was the appellant denied procedural fairness?

The hearing was conducted by phone and lasted some two hours and eight minutes. The appellant was on one line, the Member on another, and Mr Hartland and Mr Belnick (for Jetmaster) and Mr Brownlow (for Sydney Basin Plumbing) were together on a third. The hearing was conducted by telephone in accordance with the Tribunal's Covid-19 procedures: see Message from the President of NCAT, 16 December 2020 - Coronavirus (COVID19).
The appellant submits that hearing was not conducted fairly, that the Tribunal did not take adequate measures to ensure that he had a reasonable opportunity to be heard and for his submissions to be properly considered.
In expanding on that submission, the appellant submitted that having three representatives of the two respondents together on one line deprived the Tribunal of the ability to properly control the hearing. This was instanced by what the appellant submitted were frequent interruptions -17 were citied - from the respondents and of "an obvious imbalance of power between the appellant and the cumulative force of the respondents sitting together in using one telephone line." It is clear form the extracts of the hearing provided by the appellant that the Tribunal did direct all parties not to interrupt each other, and that the appellant also interrupted when the respondents' representatives were giving their evidence. Such interruptions can be a feature of hearings when parties are self-represented and occur whether hearings are conducted by phone or in person. We do not see, and the appellant has not explained, how having three persons on one phone line, and one person on another, creates a power imbalance any different to that which would occur when those people are sitting at different ends of a hearing table.
The appellant further submitted that the Tribunal gave the appellant "intimidatory directions", such as (35 minutes into the hearing): I think what I would like you to do is take me to the most important issue straight away.
This direction is not intimidatory. It is a request from the Member hearing the matter for the appellant to get to the major issue he is seeking to agitate. This is a perfectly common and standard request. Tribunals that hear high volumes of cases, such as occurs in the Commercial and Consumer Division of the Tribunal, have limited time in which to hear cases and frequently require parties to get to the point. The guiding principle of the Tribunal as set out in section 36 of the NCAT Act "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Parties to proceedings before the Tribunal have an obligation to give effect to that guiding principle: see section 36(3).
The appellant also submitted that the Tribunal had not allowed him to "express his case" and had allowed him insufficient time to do so. In this regard the appellant cited a number of examples of the Tribunal directing him to answer specific questions, not to repeat his evidence, not to interrupt, and refusing to extend time to enable him to secure additional evidence. Each is only a short quote and does not necessarily reveal the full context in which it was made.
There appears to be nothing unusual or unorthodox about any of the interventions or directions by the Tribunal quoted by the appellant. They are interventions of the sort commonly seen in matters before the Tribunal where there is a limited time in which to hear and determine matters, and in which the Tribunal is required to intervene to keep self represented parties on track, so as to ensure that they provide the evidence necessary to enable the Tribunal to make decisions: see s 36(6). The Tribunal's obligation is to provide a reasonable opportunity for a party to be heard (see s 36(5)), not to allow them the time they might like to traverse the rights and wrongs of a dispute, which is of concern to them, but is just one of many thousands of disputes before the Tribunal.
It is apparent from reviewing the materials before the Tribunal and the Member's decision that the Tribunal understood the appellant's case. The appellant was not denied procedural fairness. He was allowed sufficient time to present his case. The directions given him by the Member during the hearing were not intimidatory and were directions commonly made to ensure fair, orderly, efficient, and timely hearings.

Leave to appeal.

The appellant seeks leave to appeal on the ground that the decision was not fair and equitable and was against the weight of the evidence.
The appellant submits that the weight of the evidence before the Tribunal was such that the Tribunal's decision is manifestly unfair. The Appeal Panel does not accept this submission. Central to the appellant's case was the assertion that the chimney had been damaged by use of a jackhammer when installing the gas fireplace. There was first-hand evidence before the Tribunal, which the Tribunal accepted, that a jackhammer had not been used. Once the Tribunal reached that conclusion, the factual underpinning of the appellant's case no longer existed, and it was bound to fail. This is not unfair or contrary to the weight of evidence.
Next, the appellant submits that the hearing was conducted unfairly. This includes: … the appellant not sufficiently hearing or understanding the content of the hearing, the appellant requesting clarity and repetition of the contents of the hearing, the Tribunal failing to provide directions to control parties' submissions and the process of hearing.
The appellant has not directed our attention to any transcript which shows him requesting to have matters explained or repeated, or him expressing confusion or misunderstanding. As we have already indicated, it is apparent from the limited transcript provided by the appellant that the Member did intervene to keep the hearing on track. We do not accept that the manner in which the hearing was conducted resulted in the decision being not fair or equitable.
Similarly, for the reasons outlined above, we do not accept the appellant's submission that the decision reached by the Tribunal was against the weight of the evidence before it. The expert opinion on which the appellant's case rested deserved no weight, as it was found to be based on a false premise.
As a consequence, we refuse leave to appeal.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal refused. 2. Appeal 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: 30 August 2021

At a glance

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Decision date

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Judgment (16 paragraphs)

Parties

Cases Cited (7)

Cited By (2)