Marjanac v Plavsic

Scope and grounds of appeal 4Mr Marjanac has the right to appeal on a "question of law" but must seek the Appeal Panel's leave (permission) to appeal "on any other grounds": NCAT Act, s 80(2)(b). Our understanding of the grounds of appeal on "questions of law" are that: (1)the Tribunal did not afford Mr Marjanac procedural fairness because it did not give him enough time to present his case and did not take his evidence into account; and (2)the Tribunal member was biased. 5The Appeal Panel may only give permission for an appeal on grounds other than a question of law to go ahead if it is satisfied Mr Marjanac 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): NCAT Act s80(2)(b) and Schedule 4, cl 12. 6The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - ." 7In summary, Mr Marjanac's grounds of appeal on questions other than questions of law were that: (1)The decision was not "fair and equitable" because the Plavsics were awarded $17,121.88 more than the total cost of the job and Mr Marjanac's quotes and estimates to repair the damage were not considered. (2)The decision was against the weight of evidence because the Tribunal took into account irrelevant information and failed to take into account relevant information. (3)Mr Marjanac should be given the opportunity to adduce further evidence including summonsing a Fair Trading Inspector to give oral evidence. 8Mr Marjanac conceded that the Plavsics are entitled to be compensated for the cost of repairing the leaking skylight. He submitted that the Appeal Panel set aside the Tribunal's decision and substitute a decision that the Plavsics pay him $4,000 "being a fair and reasonable amount owing, taking into consideration the deduction of the price of replacing the skylight." As Mr Marjanac did not appeal against the Tribunal's decision dismissing his cross application, the Appeal Panel has no jurisdiction to make an order in relation to that decision.

Procedural unfairness 9It would be a breach of the NCAT Act and the unwritten or common law rules of procedural fairness if the Tribunal did not ensure that Mr Marjanac had 'a reasonable opportunity to be heard or otherwise have (his) submissions considered in the proceedings': NCAT Act, s 38(5)(c). We have listened to the tape-recording of the Tribunal proceedings which was also available to the parties. Mr Marjanac gave his evidence and submissions through a Serbian interpreter. 10Mr Marjanac's main point about procedural unfairness was that he was not allowed to arrange for a builder to provide a quote for the rectification work that needed to be done because he was denied access to the Plavsics' property. In the hearing before the Tribunal the Plavsics deny that Mr Marjanac requested access. Mr Marjanac admitted that he did not apply to the Tribunal for an order for access or request that the matter be re-listed so that he could seek such an order. That may have been because he did not know that he was entitled to do so but there was no evidence before the Appeal Panel on that issue. Mr Marjanac had the opportunity to make an application for access and, in the circumstances of this case, the fact that he did not do so does not amount to a breach of procedural fairness on the Tribunal's part. 11The hearing took about an hour. That was sufficient time for the Tribunal to hear the case. The application and cross application were relatively straight forward both factually and legally. The Tribunal member structured the hearing in a manner which allowed Mr Marjanac to respond to the homeowners' application and to point to the evidence and make submissions in support of his cross application. The member questioned both parties about particular matters and also asked them on more than one occasion if there was anything else they wanted to say. In our view the Member gave Mr Marjanac an adequate opportunity to respond to the case against him and to present his own case.

Bias 12We understand Mr Marjanac's main points to be that: (1)in the reasons for decision the Tribunal referred only to what the Plavsics said and not to what he said; (2)Mr Marjanac received an email of the orders just one hour after the hearing which would not have given the Member enough time to read through five folders of material; (3)there was no evidence that the Member had read the file before commencing the hearing; and (4)the Member asked whether he or his daughter was running his case in circumstances where he says English is not his first language and it is his prerogative to seek help as he sees fit. 13Bias may be actual or apprehended. Whether a Tribunal member is actually biased in any case is a question of fact. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA (with whom Giles and Tobias JJA agreed) said (footnotes omitted): A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be distinctly made and clearly proved. A finding of actual bias should not be made lightly. 14Mr Marjanac did not provide a statement or any other documentary evidence to support his submission that the Tribunal member was actually biased. Given the stringent test for actual bias, we are not satisfied that Mr Marjanac has proved his allegation. 15The test for apprehended bias was set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. There will be a reasonable apprehension of bias: If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 16The Tribunal's reasons were short. They did not refer to the evidence in detail but rather made findings of fact and reached conclusions in relation to each of the claims. A fair minded person reading those reasons would not apprehend that the Member was biased against Mr Marjanac. Similarly, the fact that the member reached a decision quickly does not mean that he had not read the evidence or taken it into account. 17During the hearing there was some discussion about the fact that Mr Marjanac had filed and served his material after the date on which the Tribunal had directed him to do so. He explained that his daughter had telephoned the Tribunal and had been told that it was not too late to file further material. The Tribunal member asked him, in a rather abrupt manner, whether he or his daughter was running the claim. Mr Marjanac explained to the Member that it was his claim but that he cannot operate on his own because of his lack of English language skills. After satisfying himself that the homeowners had not suffered any prejudice from the late service, the Tribunal admitted the documents into evidence. 18The Tribunal member's manner throughout the hearing was brusque. But he adopted that style when speaking to both parties. In the circumstances the Tribunal's question does not meet the test for apprehended bias. 19Mr Marjanac's appeal on questions of law is dismissed.

Not fair and equitable 20Mr Marjanac submitted that it is unfair and inequitable for him to pay $17,121.88 because that is double the amount necessary to place the Plavsics back in the same position they would have been in had the pergola not been built. This argument does not reflect the correct legal principle relating to compensation. Mr Marjanac built a defective pergola and charged $19,000. He admits that the homeowners are entitled to the cost of repairing the skylight but disputes the remaining rectification work. Even on Mr Marjanac's own analysis it is fair and equitable that he pays the Plavsics the cost of rectifying the skylight. 21However, the Tribunal accepted the expert evidence submitted by the Plavsics, which is that significantly more work than replacing the skylight needs to be done to rectify the defective pergola. The Tribunal also accepted the cheapest quote for undertaking that work.. There is nothing unfair or inequitable about Mr Marjanac being ordered to pay the cost of rectification work which the Tribunal found to be necessary so that the Plavsics ultimately receive what Mr Marjanac promised he would build - a pergola without defects, or with the defects rectified. There is also nothing unfair or inequitable in the quote being obtained before the expert report, in circumstances where the expert report supports the scope of works set out in the quote.

Against the weight of evidence 22The evidence which Mr Marjanac said that the Tribunal did not take into account was: (1)a quote of $732 from Universal Roofing and Accessories to replace the skylight; and (2)the report of his expert KOS Constructions (NSW) Pty Ltd dated 7 June 2014. 23Mr Marjanac mentioned the quote in his evidence. The fact that the Tribunal preferred to rely on a quote from tradesmen who had inspected the pergola does not mean that the ultimate decision was "against the weight of evidence". The same conclusion applies to the fact that the Tribunal accepted, on the basis of expert evidence, that more work than simply replacing the skylight needs to be done. 24The second point that Mr Marjanac made about the evidence was that the Tribunal did not take into account the report of his expert, KOS Constructions (NSW) Pty Ltd dated 7 June 2014. During the hearing the Tribunal Member asked Mr Marjanac to identify the evidence on which he relied. He pointed to the KOS Constructions report. The Tribunal noted that $1,350 had been quoted to fix the roof and skylight and to repair the ceiling. Mr Marjanac accepted that that was only one aspect of the work that the homeowners' expert had found to be defective. His point was that his expert's report 'was not further explored'. 25The Plavsics objected to the Tribunal taking the KOS Constructions report into account because it was not based on an inspection of the pergola. The member accepted the report into evidence and indicated that he would take into account the reason for the Plavsics' objection when assessing the weight he would give to that evidence. 26The Tribunal accepted the expert evidence provided by the Plavsics and gave little or no weight to the KOS Constructions report. In circumstances where the Tribunal had expert evidence from the homeowners and Mr Marjanac's expert had not had access to the premises, it cannot be said that the finding about defective work or the cost of rectification was against the weight of evidence.

Significant new evidence 27Mr Marjanac applied to the Tribunal for a summons to be issued to a Fair Trading Inspector who attended the premises and provided a report in relation to the skylight, to attend and give evidence. The Tribunal advised him by letter of 27 May 2014 that the Home Building Act precluded him from summonsing a NSW Fair Trading Inspector to attend a hearing as a witness. The letter suggested that Mr Marjanac may wish to amend his summons to request that the Inspector provide any relevant documents. He did not do so. 28In his submissions on appeal Mr Marjanac repeated his request that a summons be issued to the Fair Trading Inspector. He regards that Inspector's evidence as being reliable because he is an employee of an independent body. He also wants to provide his own expert building inspection report and further quotations in relation to the repairs. 29The legislation provides for the Appeal Panel to grant leave where there may be a substantial miscarriage of justice because "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." The evidence to which Mr Marjanac has referred was reasonably available at the time of the hearing before the Tribunal. Mr Marjanac could have summonsed any relevant documents from the Fair Trading Inspector if such documents exist and could have obtained an expert report and further quotations. Appealing against the Tribunal's decision does not give Mr Marjanac the opportunity to re-run a case that he has failed to prepare adequately the first time. 30Leave is refused for Mr Marjanac's appeal on grounds other than questions of law to proceed.

Irrelevant issues 31Several issues that Mr Marjanac raised in written submissions are not relevant to any of his grounds of appeal. They include whether the Plavsics: (1)were owner builders; (2)applied for and obtained the correct documentation and authorisations from the relevant local government authority; (3)designed the pergola; (4)knew that he was a "tradesperson", not a licenced builder; or (5)installed shutters which were not approved by the local government authority. 32Other irrelevant issues raised by Mr Marjanac included whether he: (1)attempted unsuccessfully on more than one occasion to fix the skylight; or (2)filed and served his evidence on time. 33The issues raised in relation to the Plavsics are not relevant to Mr Marjanac's grounds of appeal because there is no evidence that the Plavsics were owner builders. The fact that they applied for and were granted relevant planning and building approvals does not mean that they were owner builders. In any event, even if the Plavsics were owner builders, this would not affect the statutory warranties Mr Marianac owed under s 18B of the Home Building Act. Mr Marianac owed those statutory warranties whether or not the Plavisics knew that he was not a licenced builder. Further, there is no evidence that the problems with the work undertaken by Mr Marjanac were caused by the pergola design or by the installation of shutters. 34The issue of whether Mr Marjanac unsuccessfully attempted to fix the skylight is also irrelevant as there was no dispute that this was the case. The issue of whether Mr Marjanac filed and served his evidence on time is irrelevant because the Tribunal member admitted the evidence.

Allegations of fraud 35Mr Marjanac alleges that the Plavsics committed fraud in order to strengthen their case. He said that one of the signatures on the quotation document is not his, that the words and symbols "+ insulation" and "* door as agreed" were not written by him. He does not deny that the Plaviscs paid him an extra $1,000 in final payment but he maintains that "we never signed for it". These allegations were not raised at the Tribunal hearing and the Plavsics emphatically deny that they have acted fraudulently. 36The opportunity for Mr Marjanac to prove that he was entitled to be paid any money, whether because of a fraudulent act or otherwise, was at the Tribunal hearing. He did not do so then and he provided no evidence in support of his allegations on appeal. Furthermore, while Mr Marjanac alleges fraud he does not claim that the Plavsics obtained property belonging to him, obtained any financial advantage or caused any financial disadvantage to him: Crimes Act 1900 (NSW), s 192E. 37The Plavsics seek an order from the Appeal Panel that Mr Marjanac provides them with a written apology in relation to the 'false and defamatory' allegations he has made. That is not an order that the Appeal Panel has power to make but it does not reflect well on Mr Marjanac that he has made such serious allegations when he has not provided any affidavit or other evidence to support those allegations.

Conclusion 38Mr Marjanac's appeal is dismissed because he has failed to persuade us that the Tribunal hearing was procedurally unfair or that the Member conducting the hearing appeared to be or was actually biased. The Tribunal gave Mr Marjanac a reasonable opportunity to present his case. The fact that he did not avail himself fully of the opportunity to put forward evidence which may have assisted his case does not mean that the Tribunal made an error of law. 39Leave to appeal on grounds other than a question of law is also refused. Mr Marjanac has not persuaded us that he has significant new evidence which was not available at the hearing, that the Tribunal's decision was against the weight of evidence or that the decision was not fair and equitable. There is no basis for a finding that he has suffered a substantial miscarriage of justice. 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: 16 October 2014