Leahy v Watermin Drillers Pty Ltd - [2021] NSWCATAP 281 - NSWCATAP 2021 case summary — Zoe

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Leahy v Watermin Drillers Pty Ltd

[2021] NSWCATAP 281

NCAT Appeal Panel|2021-08-31

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-08-31

Catchwords

Ex parte Applicant S 20/2002 (2003) 198 ALR 59 Minister for Immigration and Multicultural Affairs
Ex parte Eshetu (1999) 197 CLR 611 Minister of Immigration and Citizenship v SZMDS [2010] HCA 16
240 CLR 611 Re-Refugee Tribunal

Source

Original judgment source is linked above.

Catchwords

Ex parte Applicant S 20/2002 (2003) 198 ALR 59 Minister for Immigration and Multicultural AffairsEx parte Eshetu (1999) 197 CLR 611 Minister of Immigration and Citizenship v SZMDS [2010] HCA 16240 CLR 611 Re-Refugee Tribunal

Judgment (13 paragraphs)

[1]

REASONS FOR DECISION

The Appellant appeals against a decision in the Consumer and Commercial Division of the Tribunal dated 11 June 2021. The hearing took place on 13 April 2021.
In the proceedings at first instance the appellant brought a consumer claim under the Fair Trading Act 1987 seeking orders that: 1. The respondent pay him $1,918.00; and 2. He did not have to pay the respondent $24,000.00.
In reasons dated 7 June 2021 the Tribunal Member dismissed the appellant's application and ordered him to pay the respondent $17,325.00.
The appellant now appeals against that decision. His Notice of Appeal seeks to overturn the orders made at first instance and replace that decision with orders that: 1. He does not have to pay the respondent $17,325.00; 2. The respondent refunds an overpayment of $1,518.00; 3. The respondent pays him compensation of $1,000.00 for 'damage and stress'; and 4. The respondent furnish a report for Water NSW showing a pumping rate of 720 litre per hour. 5.
The appellant's Notice of Appeal indicates that he is asking for leave to appeal. In that regard the appellant relies on a document which he describes as an attached email and independent testing report sent to the Registrar.
That document referred to is a 170 page document which consists of; 1. an 111 paragraph commentary on the hearing and the Tribunal Member's decision; 2. a 1 page report on an 'Independent Bore Test' dated 22 June 2021; 3. the appellant's affidavits of 14 October, 16 November, 7 December; 4. the appellant's written submissions of 88 paragraphs at first instance dated 19 April 2021; 5. the appellant's written submissions of 98 paragraphs at first instance dated 29 April 2021, being 'Application to strike out Respondent Additional Pleadings'; and 6. various other documents filed in the first instance proceedings.

[2]

Facts and Tribunal findings

By written contract dated 10 September 2020 the appellant signed a contract with the respondent for the construction of a bore on the appellant's land near Orange. The contract provided that in consideration of the sum of $9,000 plus GST, the respondent would drill a bore to a depth of 50 m. If the depth was shallower or deeper than 50 m, the price was to be adjusted by $165 per metre.
The contract expressly provided an acknowledgement by the appellant that the respondent contractor made no representation or warranty that the drilling carried out would produce a result satisfactory to the owner and that the payment under the contract would not be conditional upon the result being satisfactory to the owner.
Clause 10 of the contract provided : 'If drilling for water, the contractors will record strata details and water cut information, if water is found, for the owner or his agent as soon as reasonably possible after such find and fill out the recorded information in the appropriate Department form and deliver to the owner after payment in full for the materials and services provided under the contract.'
The Tribunal found that the work commenced on the 12 September 2020 and the appellant paid the contractor $3,300 before commencement. The contractor, by its employee, Mr Maloy-Armitt informed the appellant of the need to contain the spoil and recommended a skip. The appellant declined and in the course of drilling significant amounts of mud and slush were deposited on the appellant's lawn. The Tribunal found that the email correspondence, before the parties commenced work, clearly indicated that the appellant was to be responsible for the waste.
Drilling commenced on 14 September 2020 and the bore reached 28 m on that day. However only seepage water was found at that level. The appellant then instructed the respondent to continue drilling.
The respondent continued drilling as instructed and on reaching 50 m on 15 September 2020 still only seepage water had been found. A discussion took place between the appellant and the respondent when options were considered, but as the appellant sought a worthwhile amount of water "like the council supply" the respondent recommended not going beyond 80 m.
In an email dated 15 September 2021 the appellant proposed a lower rate to drill to 200 m and it was agreed that the drilling between 50 m and 80 m would be charged at $165 per metre, and then from 80 m to 200 m at $90 per metre plus GST. Such was recorded in an email dated 15 September 2020.
Drilling then continued as instructed to 200 m but no suitable volume of water was found. Drilling ceased and the bore was sealed and the respondent sought recovery of the balance of monies owing, namely $17,325.
At this point the appellant disputed the need to drill beyond 28m. At the Tribunal the appellant claimed that he made it clear he only needed sufficient water to water his garden via a 5000 L tank and that seepage water at 28 m was sufficient for that purpose.
The appellant provided voluminous evidence to the Tribunal. The Tribunal found no evidence to support the appellant's claim which he made that drilling was decided at 28 m; and that he told the respondent that he only wanted water to water his garden. The Tribunal accepted the evidence of the respondent that there was no such conversation.

[3]

Grounds of appeal

The appeal does not identify any specific issue of law for determination: Rather, the appellant attaches an "independent testing report" which was sent to the registrar of the Tribunal. It is apparent that in the circumstances, the appellant is claiming that the decision is not fair and equitable. As such, this is an appeal under section 80 (2) of the Civil and Administrative Tribunal Act 2013 ('CAT' Act). As such, leave is required to bring the appeal. To satisfy the requirements for leave the provisions of Part 4, cl 12 of the CAT Act apply which relevantly state: '12 Limitations on Internal Appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) 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, an Appeal Panel considered the requirements for a grant of leave, and at [84] relevantly held that: "(2) 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.'
Accordingly the Appeal Panel must consider the claims which are made by the appellant in order to determine whether it will grant leave to appeal. The appellant does not have an appeal as of right except where a question of law arises: see section 80 (2) (b) of the CAT Act. What constitutes a question of law has been considered in John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 59 at [13]. In considering whether to grant leave, the Appeal Panel must follow legal principle, as stated in Temple v AMR Motors Pty Ltd [2017] NSWCATAP 221 at [54] - [59].

[4]

Appellant's Submissions

The appellant is unrepresented. The appellant provided, under cover of an email dated 30 June 2021 evidence which he provided to the original Tribunal hearing comprising: 1. An affidavit sworn on 16 November 2020 which the Tribunal has treated as part of the appellant's submission. The affidavit contains 140 paragraphs together with annexures; and 2. An affidavit of the appellant dated 7 December 2020 which attaches maps and diagrams and calculations of water flow.
The Appeal Panel will consider the material in order to determine whether it should grant leave in respect of all or any of the challenges which the appellant makes to the decision under review. The affidavits have categorised topics which were before the Tribunal Member and which will be referred to hereunder as follows: 1. Submission: dishonesty about the existence of water. In this paragraph the appellant maintains his attack upon the respondent concerning the fact that water was not found at 28 m. The appellant refers to his claim that the respondent deliberately failed to keep the appellant "fully informed about the quantity of water they found as a tactic to defraud us; engaged in unconscionable conduct, fabricated statements, acted dishonestly, tried to leverage more money from the respondent's". The appellant states: "The truth we now believe is there is substantial water at 30 m based on the pressure lift as advised by our neighbour who has many years' experience with bores having worked in the Department of Agriculture." The appellant makes a claim "now confirmed" that the respondent "cut the bore at 30 m…". The appellant states that there is now higher water flow than was previously revealed in his estimated water flow contained in the respondent's affidavit of 14 October 2020. The appellant alleges deceitful conduct by the respondent, intention to deceive, subterfuge and making statements which the respondent knew to be false which was not innocent; 1. Damage to property: the appellant denies that Mr Max Jones of the respondent "said anything about a skip bin" for the removal of waste; that the respondent's failed to control this spoil and in consequence mud and slush extended across the grass of the property and onto the veranda of the house; 2. Bullying and threats: the appellant claims the respondent has used threatening tactics and seeks leave to bring witnesses if required to prove such fact. The appellant claims that the respondent threatened to move its truck without finishing the job "deliberately to pressure us". The appellant claims the respondent (Max Jones) denigrated the appellant's employer; that he is a dishonest person ; that their "extensive testimony to try to make us look bad clearly shows they do not take their professional responsibilities seriously"; that at no point did the respondent offer to provide a sludge pump; and 3. Stress and anxiety: the appellant claims the respondent is unethical and dishonest; deliberately undertook unnecessary work; threatened to "pull out of the job without completing it"; have caused "significant damage to our property": "have not finished the work" and raise nine other claims of a similar nature all of which the appellant claims has caused distress to the appellant and damage to the appellant's property.

[8]

Findings

It is apparent that the appellant disagrees with the Tribunal's decision. However, a disagreement by a litigant with a Tribunal decision does not constitute an error of law. The appellant may regard the decision as "irrational" or "unreasonable", as referred to in Associated Provincial Picture Houses v Wednesbury Corporation [1948]1 KB 223. To succeed on such a ground, an appellant must demonstrate that the conduct of the Tribunal member was so unreasonable that no reasonable person could so conclude.
A high level of unreasonableness might be equated to irrationally: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. However, in so far as the Wednesbury tested is to be applied, it applies only to the decision makers discretionary decisions, and not to fact-finding: see Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59.
However, claim of unreasonableness or irrationality may amount to no more than a disagreement with the decision. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court of Australia observed that expression such as "illogical or unreasonable, or irrational" used in challenging a decision may merely be an emphatic way of "saying that the decision is wrong": see Gleeson CJ and McHugh J at 626.
The appellant's claims relate to the fact that the tribunal rejected the appellant's version of the amendment to the contract and preferred the evidence of the respondent, stating: "… I prefer the evidence of Mr Jones and Mr Malloy-Armitt whereever it conflicts with the uncorroborated evidence of Mr Leahy".
The Tribunal was entitled to make a finding as to the credit worthiness of the witnesses.
The Tribunal accepted the evidence of the respondent that when water was not found at the depth of 50m, an agreement was reached following an email dated 15 September 2021 which set out the proposed terms of the future drilling. It was then agreed between the parties that drilling from 50m to 8m be charged at $165 per metre, and from 80m to 200m at $90 per metre plus GST. It was only after drilling was completed, and no water was found, that the appellant complained. These are finding of fact. To challenge the Tribunal members conclusions successfully, it is necessary for the appellant to satisfy the Appeal Panel that such findings were contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences": see Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [66] (Basten JA) quoting Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28] - [29]. The Tribunal Member's reasons are careful and clearly articulated. The Tribunal Member rejected the theories proposed by the appellant concerning water flows, and in the absence of expert evidence the Tribunal Member was entitled to accept the evidence of the respondent. The Tribunal Member observed that Mr Jones, of the respondent, had been in the business of water drilling for 64 years and had had significant experience in water drilling. As was referred to in Fox v Percy by Gleeson CJ, Gummow and Kirby JJ at (41): 'No judicial reasons can devastate all the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.'
The Tribunal Member considered that the testimony of the respondent's witnesses were more credible than those of the appellant; and he was prepared to accept that evidence in the absence of any other compelling evidence that their testimony was incorrect. This is not a matter where it can be said that the decision-maker has applied a wrong principle, or allows extraneous or irrelevant matters to guide or affect him; or that he has mistaken the facts or did not take into account some material consideration in his determination as was the test applied in House v The King (1936) 55 CLR 449 at 505.
The appellant may strongly disagree with the factual findings, but an appeal is not an opportunity for the losing party to run their case again: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWATAP 39 at [10].
As the challenge is subject to the observations hereunder in relation to findings of fact, leave will not be granted to bring the appeal in respect of the factual issues.
The Appeal Panel does not consider that the appellant has established that a substantial miscarriage of justice has occurred. It follows that the requirements for leave as set out in paragraph [20] above have not been established and accordingly it refuses leave in respect of the factual issues raised. However the appellant has raised two issues of law, namely a claim of procedural unfairness and a claim of bias.

[9]

Procedural fairness

A failure to afford procedural fairness is a question of law: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd at [13 (4)]. The claim of procedural unfairness is confined to the appellant's assertion that he was not afforded time to undertake water tests.
When the proceedings were commenced by the appellant, it was necessary for him to provide all the evidence upon which he wished to rely in support of his claim. The Tribunal does not operate, and nor does a Court operate, on the basis that a litigant who brings a claim may have the proceedings postponed another day for a further hearing if the Tribunal or Court should hold against that party on the evidence then placed before it. It is incumbent upon a party to fulfil the task of adducing evidence sufficient to discharge the burden of proof that a valid claim exists.
The Tribunal Member noted that the appellant was reliant upon his own assessment of water flows. Such evidence was rejected due to the lack of qualifications or experience of the appellant. The Tribunal Member does not record any request by the appellant to adjourn the proceedings to enable him to obtain expert evidence. The respondent's submissions indicate that "The Applicant has had ample time to engage an expert to submit a report affidavit on his behalf" and "the Applicant has sought not to engage an expert to advise him and report transparent to the Tribunal. The applicant's evidence consisted of his own interpretations of what he has heard or read somewhere and these interpretations are not factual."
The Appeal Panel finds that there is no basis for procedural unfairness. At the hearing the appellant sought to tender numerous documents concerning water flows. However, there no expert report was tendered. Further, any such evidence, sought to be tendered on appeal, would not constitute "fresh evidence" as referred to in section 80(3) of the CAT Act. It has been repeatedly held that "fresh evidence" does not include evidence that was available, or could have been available at the time of the original hearing: see Lawless v The Queen (1979) 142 CLR 659 at 669 per Stephen J; Johnson v Johnson [1900] P.19 at 21. Evidence of water flows could have been obtained from an expert prior to the Tribunal hearing at first instance: the appellant did not provide such evidence, and accordingly it follows that the opportunity to now produce any evidence has been lost. Procedural fairness concerns the fairness of the proceedings and not the decision: see Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition (2009) Lawbook Co, at abstract 7.20.

[10]

Bias

The appellant alleges bias on the part of the Tribunal Member. Such bias is said to arise because the Tribunal Member did not accept the evidence of the appellant concerning the need for "some kind" reservoir in order to pump for irrigation purposes.
The type of bias alleged is actual bias. Actual bias is inferred from statements or conduct, which can amount to actual bias although the conduct was not deliberate, conscious or malicious: see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 135 - 136. However, the mere fact that a decision-maker may choose not to refer to a piece of evidence, or to find that it is not necessary to refer to it, does not constitute bias. To constitute actual bias, facts must be established to show that the decision has not been decided impartially or without prejudice. That is, it must be identified that which it is said might lead to the conclusion that the Tribunal Member has decided the proceedings otherwise than on its legal and factual merits. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court dealt with the case of apprehended bias. In doing so it referred not only to the identification of the facts, but also that there "must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits": see Ebner at 345.
It has been held that an allegation of bias is a serious allegation which must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]: see also Re-Refugee Tribunal; Ex parte H (2001) 179 ALR 45 at [28]. The appellant has indicated no basis for its serious assertion except the fact that the Tribunal preferred the evidence of the respondent. It did so having come to the conclusion that where matters were in contest and dependent upon oral testimony, the respondent was to be believed. Nor has it been suggested that the Tribunal has identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82). Nor has it been suggested that a wrong principle of law has been applied: see Chapman v Taylor [2004] NSW CA 456 at (33) per Hodgson JA (Beazley and Tobias JJA agreeing). Accordingly this ground of appeal is rejected.

Leahy v Watermin Drillers Pty Ltd

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Judgment (13 paragraphs)

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Cases Cited (18)

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