54 To the extent that Mr. Harris's report suggested there was a problem with the 70 mm by 70 mm outlet for the Paddington property's roof's box gutter, causing water to overflow under the installed roof sheets and into the cavity below, I accept Ms. Silva's submission that the Homeowner has not demonstrated any reason why the Roofer should be held responsible for that, in light of the scope of works in the "residential small job contract"
- Thus, the Tribunal concluded at 56:
The only expert opinion evidence that the Tribunal has before it, which does comply with the Tribunal's Procedural Directions relating to expert evidence, is Mr. Drexler's report.
- The Tribunal or its predecessors have remarked on a number of occasions (see Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685; McGinn v Barilla [2018] NSWCATAP 85) that:
1. a court or tribunal is informed and persuaded only by the presentation of evidence;
2. evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged.
3. evidence may be photographic, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent;
4. the uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered.
- As we understand matters, the only relevant evidence presented by the Homeowners to support their claims of defective work undertaken by the Roofer was correspondence between the parties and a series of photographs taken by one or other of the Homeowners to which were added annotations of the Homeowners' opinions as what those photographs depicted. To take two examples:
- the annotation to the photograph at p 92 behind Tab C of the Homeowners' appeal bundle is said to depict "Trade waste illegally dumped by [the Roofer] onto the pedestrian footpath and pocket park adjacent to [the Homeowners house];
- the annotation to the photographs at p 96 behind Tab C of the Homeowners' appeal bundle is said to depict "Damage to [the Homeowners house] as a result of trade waste being thrown off the top of the roof … by [the Roofer]".
- Apart from being irrelevant to the matters agitated in the Amended Points of Claim and before at the Tribunal hearing, this opinion evidence is of the Homeowners is of no probative value.
- True it is that the Tribunal is not bound by the rules of evidence, but as a predecessor Tribunal stated in Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10:
18. Having made that observation [that the Tribunal may conduct proceedings as it thinks fit] , it is timely to recall the caution suggested by Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228. His Honour stated at 256:
But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
19. As is observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581:
Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support".
- In short, there is a difference between having "a good case" and having the evidence to prove that one has "a good case".
- In our view, the evidence before the Tribunal relied on by the Homeowners was entirely lacking. We see no error by the Tribunal on the basis of the materials before it. In our view, to the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
- We make two final observations. The first is that the Homeowners submit that they suffered an injustice and leave to appeal should be granted because the Tribunal declined to award them any of their claimed compensation of:
$67,943.20 as a "genuine estimate of time spent" by the Cross-Claimants, $3,056.542 for "annual leave taken", quotations to have the roof replaced at the Paddington property, repair and painting costs for some of the brickwork at the Paddington property and its garage, as well as reimbursement for travel costs, courier costs and other ancillaries.
- The Tribunal found that:
73. The largest item of the monetary orders claimed by the Cross-Claimants against the Roofer are for costs of both the Cross-Claimants "to prepare for this process (including the preparation of our document bundle) and annual leave taken in order to attend at CAT." There are also "ancillary costs" claimed by the Cross-Claimants for the CAT application fee, travel costs, printing costs and courier costs.
74. There was very limited evidence about the Cross-Claimants' costs of their preparation time, other than a high-level, general assertion that this was a
"genuine estimate". The Tribunal was given almost no evidence about Mr. d'Entremont's employment circumstances or his annual leave. The Tribunal was given limited evidence about the Homeowner's circumstances, other than that she is a corporate lawyer, but there was no evidence about her hourly rate and whether that rate is all payable to her as income or some of it would have to go to her costs or costs of the firm for which she works, and there was no evidence about her annual leave and whether the Homeowner in fact had to forego work so that she could prepare for the NCAT proceedings. Even if I assume the Cross-Claimants lost earnings as a result of the CAT proceedings, they made no submission why loss of earnings should be allowed as a cost to them, despite Cachia v Hanes (1994) 179 CLR 403. The Cross-Claimants made no submission why the Homeowner should be in a privileged position as regards to her time in dealing with the CAT litigation, despite Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29.
75. I would dismiss this part of the claim on the ground that there is no evidence to substantiate the claim or alternatively, that the evidence is not persuasive that these amounts claimed are caused by the Roofer's breach of warranty and reasonably arise because of the breaches. Further or in the alternative, this part of the claim appears to be contrary to the authorities cited in the preceding paragraph of these reasons.
76. The Tribunal also dismisses the Cross-Claimants' claim for ancillary costs. In circumstances first, where the Tribunal does not have jurisdiction in respect of the Cross-Claimants' claim against Mr. Greenslade, and the Homeowner made no attempt during submissions to support those claims; and secondly, the Cross-Claimants have only recovered a relatively small proportion of the monetary claim they make against the Roofer, the Tribunal is not convinced that it should make any order in favour of the Cross-Claimants for their claimed ancillary costs.
- We see no error in the Tribunal's reasoning or in its conclusions.
- The second observation we make is that all the submissions of the Homeowners relating to the impositions of "sanctions" and "penalties" on either or both of the Respondents were misconceived.
- By way of example, the Tribunal does not have jurisdiction to cancel Mr Greenslade's plumber's licence, less still to order that it may not be renewed because of breaches of the ACL or breaches of "directors' duties".
- Nor does the Tribunal have any jurisdiction to "sanction" Mr Greenslade under the Corporations Act 2001 (Cth) (Corporations Act), including that he be disqualified as a director, including that "any such current appointments be terminated as soon as possible".
- Overall, we are not satisfied that the Homeowners have established that they may have suffered a substantial miscarriage of justice on the basis of one or more of the grounds set out in cl 12 of Sch 4 of the NCAT Act. Even if we were so satisfied, we would grant leave to appeal as we are not satisfied that the criteria for doing so operate in this case. In our view, the outcome of the proceedings before the Tribunal are consistent with the evidence provided and submissions made to the Tribunal at first instance.