Lisle v Price

The Appeal

1. An appeal may be on a 'any question of law', or with leave of the Appeal Panel on 'any other grounds': Civil and Administrative Tribunal Act 2013, s 80(2)(b). The Appeal Panel's discretion to extend leave to permit an appeal on any other grounds (being grounds other than questions of law) is circumscribed in the case of Consumer and Commercial Division appeals by the criteria set out at cl 12 of Sch 4 of the Act, which provides, relevantly to this case: 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 under appeal 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
2. The grounds of appeal listed under the heading questions of law are: 1. The Member wrongly treated the report of NAS Automotive as expert evidence [we interpolate, the report provided by Mr Geha to which we referred above], in circumstances where the reports did not comply with the NCAT Procedural Direction 3 in relation to Expert Witnesses. (Paragraph 49 of the Decision.) 2. I was not afforded procedural fairness because I did not have an opportunity to obtain expert evidence in response to the NAS Automotive Report, and did not have an opportunity to question Nassif Geha from NAS Automotive about the report, its findings and estimates. 3. I was not afforded procedural fairness because I did not receive notice of: 3.1 The Application. 3.2 The Directions hearing of 7 March 2017; and 3.3 The directions made on 7 March 2017. And the Member failed to adjourn the Hearing to allow me to obtain expert evidence in reply. 1. The Order includes component for Costs (paragraph 61 of the Decision), contrary to section 60(1) of the Civil and Administrative Tribunal Act 2013, and where there were no special circumstances warranting an order for costs.
3. As to Ground of Appeal 4, the Tribunal stated at paragraph [61] of its reasons: I allow Price the sum of $400.00 paid to Kingsdene Automotive for assessment and report on the vehicle.
4. It will be apparent that this is not an award of legal professional costs, the subject matter of s 60(1) of the NCAT Act. It is an award for contractual losses incurred by Price. Ground 4 is misconceived. Mr Hardy agreed, and he informed the Tribunal that the Ground was not pressed.
5. Consequently we will consider the appeal as it relates to orders (a) and (c).
6. At hearing Mr Hardy on behalf of Lisle emphasised three points. The first is that the Tribunal should have ensured that Price conform with the procedural rules of the Tribunal governing the reception and use of expert evidence. The second is Lisle should have been given an opportunity to place before the Tribunal expert evidence of his own. The third is that Lisle should have been given an opportunity to cross-examine the authors of the reports, in particular the NAS report, especially in circumstances where the Tribunal made critical findings based upon them.

Procedural Fairness in relation to Provision of Notices

1. We will commence by considering first the first limb of Ground 3, as our conclusion in that regard, it well be seen, has influenced our response to Grounds 1 and 2 and the second limb of Ground 3.
2. For the following reasons, we are not satisfied that Lisle failed to receive the notice of the application; the notice of the directions hearing to be held on 7 March 2017; or the notice of the orders made at that hearing.
3. The notice of the date of the hearing (29 June 2017) is a separate document from the notice of the orders made at the directions hearing. That notice is dated 13 March 2017. There is no assertion by Lisle in the notice of the appeal that he did not receive that notice. He attended the hearing on 29 June 2017. It may be inferred therefore that he received the notice of hearing.
4. As to whether he received the notice of the directions (the critical question), we have examined the Registry file. The file contains copies of the following documents: notice of the application, followed by the notice of the date, time and venue for the 'conciliation and hearing (group list)' (as the first procedural hearing is styled in this class of business in the Tribunal).
5. In this instance the file reveals that the notice for the directions hearing on 7 March 2017 was the second one of that kind. There was an earlier notice that had set 10 February 2017 as the date. That listing was vacated and a new date set at the request of Price. Price's adjournment request made 3 February 2017 and sent by email to the Registry is on file. The email request was copy emailed to Lisle at his email address. Lisle acknowledged at our hearing that he had known about the 10 February date, but stated that he did not hear about the replacement date of 7 March.
6. In each instance (the notice for 10 February and the notice for 7 March) there are two notices addressed to Lisle, the first to his 'address for service of documents' as it is shown in his business' ASIC registration (record as extracted 9 January 2017 - an address in Campsie) and the second to his 'business address' shown in the ASIC record - his workshop address in Chipping Norton, which we set out in para [1] of these reasons.
7. In that regard we note that the Tribunal's notice of the orders made on 7 March 2017 has certain pro forma features, one of which is an explanation of what was meant by the reference in those directions to 'documents on which [a party] intends to rely at the hearing': IMPORTANT NOTE For the purpose of these directions 'document' means: witness statements/statutory declarations or affidavits expert reports photographs accounts or receipts quotations and any other document to be relied upon And all documents must be legible and in colour (if the original is in colour).
8. In its reasons at [7] the Tribunal noted: Lisle did not file and serve documents as directed. At the hearing he served documents on the Price [sic] and the Tribunal. He claimed that he did not receive a copy of the orders made 7 March 2017 for the filing and service of documents. After some discussion, I allowed the tender of the documents and granted Price a short adjournment to inspect them. Price was then offered an adjournment but elected to proceed with the hearing.
9. In our opinion, Lisle came to the hearing relatively prepared, with several documents. His documents included a personal, closely typed witness statement of five pages. In it he made detailed reference to the history of the dealings between him and Price, the nature of the work he was asked to do. In particular he gave a detailed reply to the bundle of photographs that formed part of Price's material. Lisle replied item by item to the criticisms of his work that Price alleged those photographs revealed. Lisle's material also included copies of various text messages between the parties relating to the work desired, and exchanges of emails that occurred during the progress of the work along with documents issued by Lisle specifying his price for the work (job order/estimates forms 0383 and 399).
10. This suggests to us that Lisle had a substantial understanding of Price's case, and of what it was desirable for him to do in preparing his defence to Lisle's claim.
11. We are not satisfied from the material before us that the critical notices (relating to the listing of the 7 March directions hearing, and relating to the orders made at that hearing) did not reach Lisle's two addresses, either because the Registry failed to mail the notices or because they were lost in the mail.
12. We will proceed on the basis therefore that Lisle was aware that it was desirable that he bring to the hearing documents of the kind to which the 'IMPORTANT NOTE' in the standard directions notice (as set out above) refers.
13. Had Lisle satisfied us that the notices did not reach either of his addresses, it would have remained necessary for him to demonstrate that he had suffered in the circumstances, viewed as a whole, suffered any 'practical injustice' (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37] per Gleeson CJ; and further Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 99 at [156] per Hayne, Crennan, Kiefel and Bell JJ). It is apparent that he did fully participate in the hearing, and that did come to it relatively well prepared.
14. We will deal separately below with the final limb of Ground 3 which relates to the process adopted by the Tribunal at hearing in relation to the evidence tendered at the hearing by Price as expert reports, i.e. the Kingsdene Automotive and NAS written assessments of the work that needed to be done by way of rectification of work done by Lisle.

Procedural Fairness in relation to Use of Evidence given by other Repairers

1. Grounds 1, 2 and the final limb of Ground 3 go this issue. The Tribunal took the two assessments into account in makings its findings of fact. Price and Lisle gave oral evidence to the Tribunal. No other oral evidence was received.
2. After making its findings as to the terms of the contract between the parties (not in dispute at the appeal), the Tribunal continued: 49 The reports of Kingsdene Automotive and NAS Automotive are tendered as 'expert reports'. I accept the observations and findings in these reports notwithstanding that they do not satisfy the usual requirements for experts' reports. I am satisfied that the authors of those reports have sufficient knowledge and experience to express the opinions which are in the reports. ... 54. I find on the evidence that the services rendered by Lisle were not rendered with due care and skill. The reports from Kingsdene Automotive and NAS Automotive highlight the defective and/or incomplete work.
3. It is clear that the Kingsdene and NAS documents did contain relevant opinion and comment from persons who, apparently, had relevant expertise. While Lisle's Grounds of Appeal only expressly put in issue the Tribunal's reliance on the NAS report, we will examine his objection as it relates to both reports.
4. Kingsdene's document is issued on business letterhead and dated 18/12/2016, with the heading 'To Whom It May Concern'. It lists 13 items that, in the author's opinion (Mr Luke Farnsworth), needed attention. For example, the author said at points 1 and 7: 1. Coil pack has been screwed to the fire wall with self-tapping screws causing a water leak from the heater core. Complete dash and heater box removal is required for replacement of heater core, and relocation of ignition coil assembly. Approximate cost of repair, $1750. [Appeal Panel note: This is the subject of order (b) not in issue in this appeal.] 7. Vehicle has not been dyno tuned and microtech computer system has not been set up properly. Approximate cost: Between, $2000 to $3000. [Appeal Panel note: This is the subject of order (a), in issue in this appeal.]
5. In the case of the NAS Report, we will set out the part of the report that is the foundation for award (c). That report was provided to Price on 23 March 2017, and formed part of the bundle he filed on 28 March 2017 in conformity with the directions: ...I have been requested to get the vehicle running. This vehicle has had extensive modifications, in order to get this engine [Appeal Panel note - word missing? - running?] we have had to replace fuel injectors, because flow rate of injectors is Too high to maintain a good quality tune, crackcase breathing system nonexistent, we have to replace tappet covers with baffles and breathers, if this was not rectified engine oil leaks and possible damage would occur, overfueling will cause engine damage, starter not correctly mounted and meshing .. it is my opinion that turbo charge fitted should be removed & exhaust system rectified to suit normally aspirated system.
6. As a matter of general principle, it was open to the Tribunal to rely on this material. It was entitled to form the view that this evidence provided a contemporaneous assessment of the state of vehicle after it left Lisle's workshop. The reports were from other members of the motor trade, who on the face of the material, and by reference to the contents of the reports and other material (such as the photographs of the alleged defects) appeared to be competent to make those reports.
7. As is the case in most of the jurisdictions of the Tribunal, the member hearing this case was not bound by the rules of evidence, in particular the provisions of the Evidence Act 1995 (Section 38(2) of the NCAT Act). Therefore it is open to the member to receive any material for consideration without regard to the rules governing admissibility of evidence, subject to the rules of natural justice. The question always is; what weight should be given to the material so received? As noted in Khan v Kang [2014] NSWCATAP 48 "49 … 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. 50 A 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. 51 Of 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) [of the NCAT Act] 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. 52 Even 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."
8. The 'usual requirements' to which the Tribunal referred in para [49] of its reasons are those found in Procedural Direction 3 of the Tribunal ('PD3'), which applies to the receipt and use of evidence from 'Expert Witnesses'. Section 26 of the NCAT Act gives the President of the Tribunal power to issue procedural directions, and provides at s 26(4): Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural direction.
9. Each of the Grounds of Appeal put in issue the Tribunal's failure to require Price to conform with PD3.
10. PD3 requires any party 'who retains an expert to provide evidence or a report for the purposes of proceedings or proposed proceedings' to ensure that the process for obtaining the report and the contents of the report comply with several standards (for example, evidence of the expert's area of expertise and qualifications, evidence of the facts or assumed facts on which the report is based, the reasons for each opinion stated, the basis for the expert's findings, any tests or investigations that were undertaken, an acknowledgement that the expert is familiar with the expert's code of conduct). It is plain that the reports given by Kingsdene and NAS were not presented in a way that met these requirements.
11. Clauses 3 and 4 of PD3 provide: 3. The Tribunal may excuse an expert witness or any other person from complying with this Procedural Directions before or after the time for compliance. 4. Nothing in this Procedural Direction prevents the Tribunal from giving any directions concerning expert witnesses or expert evidence that the Tribunal considers appropriate in any particular proceedings before the Tribunal.
12. It will be seen that clause 3 gives the Tribunal power to excuse a witness or other person from compliance with PD3, and that clause 4 allows for case-specific directions that might vary from the standard requirements.
13. As is usual in this class of case in the Consumer and Commercial Division, the parties appeared in person, and did not have any legal representation. A party is therefore left to their own resources in making judgments about what is required of them by way of proof of their claim or in the conduct of their defence.
14. We are not satisfied, for the reasons already given, that Lisle did not appreciate that Price would seek to rely on the quotes and assessments given by the repairers to whom he took the vehicle after it left Lisle's workshop. In those circumstances, Lisle faced the risk that the Tribunal might give weight (as it ultimately did) in reaching a view as to whether Price had proven his case to the relevant contents of those quotes and assessments.
15. Those quotes and assessments were not 'expert reports' in the way this term is commonly used in litigation. Typically the 'expert' is an appropriately qualified person with relevant expertise who has had no involvement in the circumstances of the case. The report is prepared at arm's length from the dispute between the parties.
16. While the Tribunal did not spell out in its reasons why it excused Price from compliance in this case, it is, we think, obvious that insisting on strict compliance with PD3 in cases of the present kind would often be oppressive and not proportionate to the nature of the claim and the nature of the dispute. The NCAT Act has as a core goal that the Tribunal 'resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible' (s 3 (d)). This goal is amplified by the 'guiding principles to be applied to practice and procedure' set out in s 36. For instance, the Tribunal's practices and procedures are to be administered 'in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings' (s 36(4)).
17. This was a small consumer claim. As is usual, both parties appeared in person at the hearing on 29 June 2017 without legal representation. The Tribunal's case management procedures are designed to ensure that on the day of final hearing the applicant has fully exposed his or her case, and equally the respondent has fully exposed the case in reply, subject to any valid adjournment application. It is expected that the parties will place before each other, in advance, and the Tribunal, on the day, all the material they wish to rely upon to enable a final determination of the dispute that day.
18. The pro forma 'IMPORTANT NOTICE' found in the notice of the directions (set out earlier in our reasons) is designed to facilitate that aim.
19. It is notable that the documents Lisle produced on the day matched most of the categories listed in the 'IMPORTANT NOTICE'. He did not produce any independent 'expert reports'. Nor did he have any photographs. It is apparent, especially from the contents of his witness statement, that he was familiar with the material upon which Price proposed to rely, in particular the photographs produced by Price. In our view, he sought to rely on his own trade expertise in reply to Price's case. As is it transpired, in relation to certain items, the views of the repairers to whom Price turned were preferred.
20. It would stand in the way of the timely resolution of small claims of the present kind if the Tribunal unduly insisted on strict compliance with PD3. The retaining of an expert and the provision by the expert of a report that met all of the requirements of PD3 would introduce a level of case management, cost and complexity into this class of proceedings that consumers and traders would often find burdensome and disproportionate. That might mean that persons with good or arguable claims might be deterred from pursuing them.
21. This is a jurisdiction, like many others in the Tribunal, where parties generally bear their own costs of bringing proceedings. The fee for an expert report that strictly corresponded to the requirements of PD3 might well be greater than or disproportionate to the sums in issue.
22. In our view the member made no error of discretion of a kind that might amount to an error of law (as to which, see generally House v R [1936] HCA 40; (1936) 55 CLR 499) in not requiring compliance with PD3 in the circumstances of this case. Ground of Appeal 1 is dismissed.
23. Nor did the Tribunal err in the ways suggested by Grounds of Appeal 2 or the second limb of Ground of Appeal 3.
24. The procedures followed by the Tribunal in this class of claim have as a clear objective the disposal of disputes either by way of conciliation or if that was not achievable at a final hearing held soon thereafter. Where a case cannot be resolved by conciliation the directions for final hearing seek to ensure that the parties show each other their evidence in a timely way. In this instance Price made his material available to Lisle 2 months before the hearing. Lisle could have, but did not, rely on any assessments from other members of the trade. He claimed at our hearing that he had been denied access to the vehicle for the purpose of an inspection. But we were supplied with no proof in that regard.
25. Lisle faced the risk that the Tribunal would rely on the auto repairer evidence supplied by Price. It was open to the Tribunal to rely on that evidence, which was clearly relevant. There is nothing in the material before us to suggest that he sought an opportunity to have the authors of those reports, in particular Mr Geha, called for oral examination.
26. In these circumstances we do not consider that Lisle suffered a denial of procedural fairness.
27. We have rejected the grounds of appeal insofar as they allege an error of law by failing to accord due process.

Leave to Extend to Other Grounds

1. Lisle also applied for leave to have the matters he has raised under Grounds 1, 2 and 3 dealt with, even though they have not been found to involve any errors of law, on the basis that he suffered a substantial miscarriage of justice (see cl 12 sch 5). His notice of appeal (there are no other written submissions) addressed two of the three criteria set out in cl 12, i.e (a) (that the decision was not fair and equitable) and (c) (significant new evidence now available). There is no submission in relation to (b) (against the weight of the evidence).
2. He said that he had now obtained evidence that NAS Automotive did not perform the work associated with return of the ECU to Microtech (the manufacturer) for repair of faults as referred to in Invoice 398, which formed part of the amount of $2800 allowed at [59] of the decision, and the subject of award (c). He said that he had evidence that NAS Automotive usually quoted $1200 for a dyno-tune, the subject of award (a), being a quote given to a customer for work of that kind with that charge.
3. In relation to award (c), the Tribunal acted on the basis of a broad estimate in the assessment and quote provided by Mr Geha, where he said that the cost to 'get the engine running' was between $2500 and $3000. The Tribunal noted at [64] that it had no firmer evidence than that.
4. As previously explained, we are not satisfied that Lisle did not have reasonable notice of the case that Price would make at hearing. He could, we think, have brought forward evidence in time for the hearing that went to the issue he now raises and there is no adequate explanation for his failure to do so. The award the Tribunal made in this regard was in the range indicated by the one piece of evidence it had, and it was satisfied that there was a defect that fell within the terms of the contract that required rectification.
5. As to the likely cost of a dyno-tune, the Tribunal made its finding at [57] on the basis of the estimate given for what was required provided in the Kingsdene report. The Tribunal noted that Lisle had not produced any evidence to the contrary. This was a matter clearly raised by Price's material, and again Mr Lisle could, we think, have brought forward evidence at the hearing, especially given his connections in the trade, of usual prices or charge for dyno-tunes of vehicles of the age and modified in the way done in this case.
6. In our view, he did not suffer a substantial miscarriage of justice, and his application to reopen the case in the way sought is rejected.
7. Accordingly, the appeal is dismissed.

Leave to Extend Appeal to Other Grounds

1. To grant Lisle's application for leave would lead, in effect, to the reopening of the dispute as it relates to awards (a) and (b), and, possibly (d). In our view, for the reasons we have given in rejecting the Grounds of Appeal described as raising questions of law, Lisle did not suffer any substantial miscarriage of justice as a consequence of the orders made against him, in particular the order the subject of award (c), the work repaired by NAS.
2. We refuse to grant leave to extend the appeal to other grounds.

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: 01 November 2017