Mitchell Bannick v Nissan Australia Pty. Ltd., Dominelli Group Pty. Ltd. t/as Rockdale Nissan and National Capital Motors

reasons for decision Introduction 1This is an appeal from the decision of the Tribunal on file MV 14/06948 dismissing the application of Mr Bannick seeking orders against one or more of the three respondents in respect of an allegedly defective motor vehicle. The Tribunal's decision was published on 24 June 2014 and written reasons were provided for the decision at that time. 2Mr Bannick by Notice of Appeal filed on 22 July 2014 sought to challenge that decision and the matter proceeded to a call over before the President, Wright J on 18 August 2014. At that time leave was granted for the parties to be represented and the parties were directed to file and serve all material to be relied on at the hearing of the appeal. 3It was noted by the President at that time that " If a party wishes to rely upon any material from the Tribunal file at first instance or a sound recording or transcript of the proceedings at first instance or any other material it is the responsibility of the party seeking to rely on that material to ensure that it is filed and served with the Notice of Appeal or Reply to Appeal or in accordance with the directions of the Tribunal for filing and service of other material to be relied upon. If it is not so filed and served, the party may not be permitted to rely on that material at a hearing." Documentary material 4At the hearing the parties identified the material that had been filed in accordance with those directions and upon which they sought to rely and that material was identified and tendered on appeal. 5In addition to the Notice of Appeal with attachment, affidavit of the appellant with attachments, written submissions and an expert report filed in response to the President's directions the appellant sought to tender at the hearing an audio disc of the hearing before the Tribunal. 6It is noted that the appellant , in his affidavit dated 27 August 2014 and filed in the Tribunal on 1 September 2014 (exhibit B) at paragraph 7, advised that he had "recently received the discs from the Tribunal that contain the recording of the proceedings" . All three respondents objected to late filing of the material. The Appeal Panel members had not had the benefit of the audio disc prior to the hearing. 7The Appeal Panel determined that the audio disc not be admitted as evidence in the appeal. 8The material relied on by the respondents consisted of a Reply to Appeal and written submission filed by the first and third respondent. The representative of the second respondent confirmed that it had not filed any documentary material and did not seek to rely on any. Jurisdiction 9The issue of whether the Tribunal at first instance had jurisdiction to hear and determine the decision below was raised by the first respondent in its written submissions. 10The parties' representatives agreed that the Appeal Panel had jurisdiction (Civil and Administrative Tribunal Act s 28(2)(c)) to hear and determine the appeal and that the issue of whether or not the Tribunal at first instance had jurisdiction was not germane to the grounds of appeal. The respondents' representatives conceded that it was not necessary to look further into the issue of the Tribunal's jurisdiction at first instance. It was noted however, that should the appeal be successful and the matter remitted for re-hearing, the issue would be a matter for any Tribunal newly constituted for a re-hearing. The Proceedings at first instance 11The appellant filed an application in the Tribunal on 5 February 2014 seeking the following orders: An order to fix or replace faulty motor vehicle or parts to the approximate value of $72,000 12Relevantly the appellant further stated on the application form under the heading "Reasons for the Orders" "I am seeking either full replacement of the vehicle and swapping all of its non genuine accessories as at 2/2/2014, or total refund of purchase price (no depreciation) to include composition [sic] for greater than 12 months of no car." 13The matter came before the Tribunal on 27 March 2014 at which time the parties were directed to exchange documents to be relied on at the hearing according to a time-table set out in the directions. It is noted the directions specifically referred to the nature of the material that could be filed as "documentary material" and relevantly included reference to "expert reports". All parties were represented at that directions hearing, although it appears that the first and third respondents attended by telephone. 14On 15 April 2014 and again on 28 May 2014 the time-table was varied by extending the time for compliance with the directions. The matter was listed for hearing on 24 June 2014 and again, all parties were represented at the hearing. 15The relevant reasons for the dismissal of the application are summarised as follows: The applicant sought an order at the hearing that he return the vehicle to one of the respondents and that they repay him the purchase price; The claim was identified and described as an "all or nothing" claim; There was no evidence produced to demonstrate a manufacturing fault; There was no evidence produced to demonstrate the vehicle was not of acceptable quality; There was no evidence produced about the cost to rectify alleged defects in the vehicle The vehicle had too many layers of paint and could not be repainted; 16Following the hearing the Member dismissed the appellant's application and published reasons for that decision. It is that decision which is under appeal. Grounds of Appeal 17The grounds of appeal relied on in the Notice of Appeal filed by the appellant were as follows; Error of Law 1.The Tribunal erred by proceeding on the basis that appellant was seeking an all or nothing claim. In the written application the appellant clearly specified an alternative claim to a refund or replacement car in that he sought that the car be fixed and or the replacement of faulty parts. In its Reasons for Decision the Tribunal asserted that the appellant restricted his claim at the hearing but if the appellant did indeed abandon this aspect of his claim at the hearing the appellant did not appreciate the significance of this issue. The appellant was reliant on an informal and just approach of the Tribunal to pleadings or orders sought. 2. The Tribunal erred in allowing the Respondent to be legally represented and not affording the Appellant an opportunity to be so represented. Further Grounds Merit of the Decision 3. The appellant seeks leave to appeal against the decision. 4.The decision was against the weight of the evidence in that the Tribunal having made the error of law as to the orders sought at ground one was then mistakenly restricted and was not able to make an order to properly repair the paintwork of the car despite the expert report before the Tribunal concluding that the refinishing was not of commercially acceptable quality. 5.The mistake as to the nature of the claim at ground one also wrongly impeded the Tribunal's ability to make an order in respect of future diagnosis and repair work in respect of the car's engine. This was particularly unfair in that the first respondent had indicated a willingness to carry out further diagnosis and repairs if required on the car's engine. 6.The appellant is seeking a further expert report to address the issue of the sudden loss of engine power and it is anticipated that this new evidence will show that he has suffered a substantial miscarriage of justice either due to a manufacturing flaw with the engine or damage that occurred through sub-standard repairs conducted by the Respondent or their agent on the engine. This expert report was not reasonably available at the time of the first instance proceedings as the appellant did not appreciate the importance of admissibility, reliability of evidence and particularly the significance of expert evidence. The appellant's lack of appreciation of evidentiary matters was not assisted by the informal nature of the proceedings which partly informed his decision to represent himself and prepare his own matter. 7.The appellant has suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair or equitable as there was evidence before the Tribunal that the new car and the accessories had cost the appellant a significant sum of money and that from the beginning there had been ongoing problems with the car's engine, exterior and accessories that the respondent's authorised repairers had failed to properly diagnose and or fix. 8.The decision of the Tribunal was unfair in that the evidence before the Tribunal proved that the paint work repairs carried out under the Respondent's authority were sub-standard and had caused the present situation where the car requires extensive repairs to make the finish an acceptable standard in terms of uniformity of colour, uniformity of thickness of paint and finish and general standard of work. 18The grounds as set out in the Notice of Appeal were supplemented by written submissions (exhibit C) and were further elaborated upon by counsel at the hearing. Ultimately the grounds relied on were; Error of law Procedural unfairness 19It was submitted that the appellant was entitled pursuant to the Civil and Administrative Tribunal Act 2013, s 80(2)(b) as of right to appeal the Tribunal's decision based on an error of law. 20It was submitted that the Tribunal member had made an error of law because in the Reasons for Decision it was asserted by the Member that the appellant had restricted his claim to a claim for $64,500 on the basis that it was an "all or nothing" claim when it was clear that was only one of the remedies sought by the appellant. In obtaining that concession from the appellant in circumstances where he was not legally represented and did not appreciate the significance of the concession, the Member had failed to exercise procedural fairness which constituted the error of law. By leave 21In addition, the appellant sought leave of the Appeal Panel to appeal pursuant to the Civil and Administrative Tribunal Act 2013, Schedule 4, cl 12(1)(a), (b) and (c). 22In regard to cl 12(1)(a) it was submitted that the appellant may have suffered a substantial miscarriage of justice because the decision was "not fair and equitable" as the Member, in restricting his consideration of the evidence to an "all or nothing" claim in circumstances where it was open to the Member to make other orders had failed to consider those other orders. 23It was submitted that the decision was against the weight of the evidence, as the Member had evidence before him that should have led to different conclusions and orders for repair of the vehicle. The appellant specifically relied on the report of Alan Todhunter tendered at the Tribunal hearing and filed in these proceedings (exhibit B attachment H). 24In regard to cl 12(1)(c), the appellant sought to rely on the report of Bruce Elson Automotive (Exhibit D) as significant new evidence going to the issue of loss of power of the vehicle that has arisen since the hearing. The appellant's submission was that the evidence was not reasonably available at the time of the hearing because the appellant did not know he had to get a report and also because he failed to grasp the significance of the need to put evidence before the Tribunal. 25It was submitted that the appellant had suffered a "substantial miscarriage of justice" because he had significant problems with the vehicle in regard to bubbling paintwork, dangerous and unpredictable loss of power and frequent rectification of accessories supplied with the vehicle. The appellant had paid over $70,000 for the vehicle and after three years it was of little if any value. The appellant had sought a remedy from one or more of the respondents soon after the purchase of the vehicle and he now sought "a chance at justice" by filing the appeal. Respondents' submissions 26The first respondent made submissions to the following effect. 27The Tribunal Member did not misapprehend the nature of the appellant's claim. Clearly on the face of his application he stated that he was seeking either a full replacement of the vehicle and swapping all of its non-genuine accessories as at 2/2/2014, or a total refund of the purchase price. It was incumbent upon the Member to clarify the orders sought before commencing the hearing. In the absence of transcript or recordings, there was no evidence before the Appeal Panel to support the submission that the Member had improperly misled the appellant to abandon any alternative claim for relief. 28The first respondent relied on the authority of Collins v Urban [2014] NSWCATAP 17 where the Appeal Panel considered the circumstances in which a substantial miscarriage of justice may eventuate for any of the reasons specified in cl 12(1)(a),(b) or (c). In particular that there must be established " 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 circumstances in paragraph (a) or (b )not occurred or if the fresh evidence under paragraph (c) had been before the Tribunal at first instance". 29There was no evidence before the Appeal Panel, it was submitted, for the proposition that there was a limit imposed on the applicant's claim or abandonment of remedies sought. Further, there was no evidence of any exchange between the appellant and the Member at first instance to support the proposition of an error of law by reason of procedural unfairness as relied on as the first ground of appeal. 30Further, the evidence relied on by the appellant at first instance (attachment K to exhibit B) made it clear that as at 16 April 2014 a further investigation by a diesel expert was required to ascertain the cause of loss of power. Consequently the appellant was on notice well before the hearing on 24 June 2014 of the deficiency in his evidence yet did not seek to obtain a report such as that now sought to be relied upon. No acceptable explanation was given as to why the report was not reasonably available at the time of the hearing. It was not the case that the appellant did not understand the need for or relevance of expert evidence. After all, he had relied on such evidence himself at the hearing and directions had been made by the Tribunal on 27 March 2014 in relation to the provision of evidence. 31In addition, the report of Bruce Elson (exhibit D) which is now sought to be adduced is speculative and inconclusive, does not traverse the Member's findings and therefore cannot be regarded as "significant" new evidence. 32The third respondent adopted the submissions of the first respondent but also made submissions that the report of Todhunter (attachment H to exhibit B) relied on by the appellant failed to identify which, if any, of the respondents was responsible for the reported paint problems. An order for rectification of defective paintwork against a specific respondent was therefore not open to the Member to make, even had he been satisfied the evidence supported the finding that the paintwork was defective. 33The third respondent also made submissions relating to whether the third respondent had been correctly identified. As those submissions were not germane to the appeal they were not pressed. However, it was noted by the Appeal Panel that if proceedings had been commenced against a wrong party there was no impediment to the appellant commencing new proceedings against the correctly named party in an appropriate jurisdiction. 34No submissions were made on behalf of the second respondent. Decision 35The Civil and Administrative Tribunal Act 2013 s 80 (2) relevantly provides (2) Any internal appeal may be made: (a) ... (b) in the case of any other kind of decision (including an ancillary decision ) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. Thus the appellant, in order to be successful on the first ground of appeal, must demonstrate that he is entitled as of right to appeal the Tribunal's decision because of an error of law made by the Tribunal below. Requirements for error of law 36The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP69 recently considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel at para 11-12 said 11 As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The notice of appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12 In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 37In this appeal the parties were legally represented but the Notice of Appeal did not satisfactorily and with any precision set out the error of law relied on. Nevertheless, the further submissions from counsel for the appellant did sufficiently identify the claimed "error of law" as noted above at para. 20. 38The Notice of Appeal does not articulate, in express terms, any question of law. The importance of the question of law was noted by the Appeal Panel in Prendergast. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast cited the following at [13]: (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 has been applied. (4)Whether there was a failure to afford procedural fairness. (5)Whether the Tribunal failed to take into account a relevant (mandatory) consideration. (6)Whether the Tribunal took into account an irrelevant consideration. (7)Whether there was no evidence to support a finding of fact. (8)Whether the decision was so unreasonable that no reasonable decision-maker would have made it. 39Counsel for the appellant identified lack of procedural fairness that amounted to the error of law relied on in this case. 40The application filed by the appellant at first instance (annexure C to exhibit B) specified that the "orders sought" were An order to fix or replace faulty motor vehicle or parts to the approximate value of $72,000 Clearly, on the face of it, the applicant sought one or more of a variety of different orders ranging from replacement of the vehicle to rectification of unspecified defects. Further on in the application at the space headed "Reasons for Decision" the appellant had written "I am seeking either full replacement of the vehicle and swapping of its non genuine accessories as at 2/2/2014, or total refund of purchase price (no depreciation) to include composition [sic] for greater than 12 months of no car". It would appear equally clear from those words that the applicant was seeking a refund or replacement only and that the refund, if awarded, should not be depreciated due to the fact the applicant had been without the use of the car for more than 12 months. 41That is, the application itself was ambiguous in that it was unclear what remedy was being requested by the appellant. Such an ambiguity in the remedy being sought is not an uncommon occurrence in the Tribunal where parties are usually unrepresented and strict pleadings are not a requirement. 42However the Tribunal "may inquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice". (Civil and Administrative Tribunal Act s 38(2)). 43Hence, in order to provide procedural fairness to each of the respondents it was necessary to clearly identify the case they had to answer and to do so it was incumbent on the Tribunal to require the applicant to clarify the orders that he sought. 44The appellant provided no evidence to support the submission that the Tribunal member had misunderstood the nature of the claim or that in doing so, the Tribunal member had misdirected himself as to the evidence to be applied. 45Furthermore the appellant provided no evidence to support the submission that in clarification of the nature of the claim the Tribunal failed to provide procedural fairness to the applicant. 46For these reasons the appellant has not demonstrated that there was an error of law giving right to an appeal as of right pursuant to the Civil and Administrative Tribunal Act 2013 s 80(2)(b). Application for leave 47Alternatively, the appellant may succeed in this appeal if he is able to satisfy the requirements of the Civil and Administrative Tribunal Act 2013, Schedule 4, clause 12 which relevantly provides (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). 48The decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 was relied on in submissions by the first respondent. That decision comprehensively reviewed the cases with reference to "substantial miscarriage of justice" in cl 12 (above) and identified the general principles to apply on an application for grant of leave. 49The Appeal Panel in Collins at para 76 said ..it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 50The appellant's case in respect of cl 12(1)(a) was that the Member's decision was not fair and equitable because he had mistakenly restricted himself to consideration of the claim on an "all or nothing basis". In doing so the appellant had suffered a substantial miscarriage of justice because the decision made was not fair and equitable. 51This is essentially the same argument as was relied on in respect of the alleged error of law. As the appellant has failed to establish that the Member was in error or had misdirected himself in consideration of the claim on an "all or nothing basis" then the appellant's submission that the consideration of his claim on that basis was "not fair and equitable" cannot succeed. 52In considering the third ground of appeal, that is that the decision was against the weight of the evidence the appellant relied on the expert evidence provided in the Todhunter report. Adopting the language of Collins, the issue for determination by the Appeal Panel is whether there was a "significant possibility" or a "chance which was fairly open" that the appellant would have achieved a more favourable result if the Tribunal had accepted and given proper weight to the evidence in the Todhunter report. 53That evidence went only to the issue of the quality of the finishes on the vehicle. The report described the general appearance of the vehicle as "good" but went on to identify a number of defects in the paintwork. The report also recommended remedial work and described that work in general terms. 54It seems the author of the report had ample experience and qualifications to express the opinions contained in the report. It is clear the report is evidence going to the defects in the paintwork and that the Tribunal was entitled to rely on that evidence. It is also clear from the Reasons for Decision published by the Tribunal that the Tribunal did accept the Todhunter report as expert evidence as it made reference to that evidence at the second paragraph on the third page of the reasons. 55However, the Tribunal was not in a position to make any orders for rectification of the paintwork in accordance with the recommendations in the report for two reasons. Firstly, the applicant had made clear to the Member that he was no longer seeking such an order and only pressed his claim for replacement of the vehicle or refund of the purchase price. The report did not support either of those claims. Secondly, even if the applicant had maintained his claim for rectification of defects in the vehicle, there was insufficient evidence to enable the Tribunal to attribute the defects in the paintwork to the actions of any one or more of the respondents and an order for rectification made against a specific respondent would not have been available. 56Further, the Reasons for Decision indicate that the Member also had other evidence on the paint issue (the letter from Fineline Smash Repairs referred to at page 3 of the decision). That evidence was not before the Appeal Panel and it was therefore not possible for the panel to determine, in light of that other evidence, whether more or less weight ought to have been given to the Todhunter report. 57The appellant's counsel was asked by the Appeal Panel to take the panel to other evidence, if any, on which the appellant placed reliance in respect of this ground of appeal. Whilst it was suggested by counsel that orders could have been made for a partial refund or rectification of defects there was no other evidence referred to that was said to have resulted in a substantial injustice for the reason provided under cl 12(1)(b). 58The Appeal Panel is therefore not persuaded that the appellant has suffered a substantial injustice because the decision of the Tribunal was against the weight of the evidence. 59The appellant also relied on cl 12(1)(c) and sought to introduce new evidence in the form of the report from Bruce Elson Automotive Consultants (exhibit D). 60The Elson report was dated 22 September 2014 and was prepared by Mr Bruce Elson. The attached resume makes it clear that Mr Elson has ample qualifications and experience to express an expert opinion and it makes appropriate acknowledgement of the author's obligations pursuant to the Tribunal's code of conduct for expert witnesses. 61However, the author of the report has not driven the appellant's vehicle and it is unclear from the report whether he has in fact examined the subject vehicle at any time. It appears to be simply a review of the documents and an expression of opinion of possible diagnoses of the causes of loss of engine power. 62There are a number of difficulties faced by the appellant in now seeking to introduce the report to demonstrate that he has suffered a substantial injustice. 63The wording of cl 12(1)(c) requires that the new evidence must be "significant" and that it was "not reasonably available" at the time of the proceedings at first instance. In regard to the second issue the appellant makes no mention in his affidavit (exhibit B) of any reason that the Elson report was unavailable at the time of the first hearing. The appellant, in his affidavit at para 8, does state in a general way "I did not understand the particulars around evidence". It was submitted he (the appellant) did not know he had to get a report and that he failed to grasp the significance of evidence. There was no evidence before the appeal panel to support this submission. 64However, it is noted that the Tribunal in its written directions provided to the applicant on 27 March 2014 directed the applicant as follows 2. By consent, the applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 21 May 2014. IMPORTANT NOTE: For the purpose of these directions "document" means; -Witness statements/ Statutory Declarations or affidavits -Expert reports -Photographs -Accounts or receipts -Quotations -Any other document to be relied upon 5.If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal. 7All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. 65In response to those directions the applicant provided a large number of documents including the Todhunter report and the NRMA report (annexures H and K respectively to exhibit B). The Todhunter report itself indicates awareness by the appellant of the need to provide evidence to support his claim. The NRMA report made it clear that further investigation of the problems with the vehicle were necessary in order to diagnose the fault. 66The Appeal Panel does not accept the assertion that the appellant was unaware of the necessity to provide evidence to support his case and is further satisfied that the appellant was on notice both by the directions made by the Tribunal on 27 March 2014 and by the content of the NRMA report dated 16 April 2014 that he would need expert evidence to prove his case. 67There is simply no adequate reason provided to support the proposition that the evidence now relied on in the Elson report was not reasonably available at the time of the hearing. 68Further, the Elson report does not provide any evidence in relation to the author's examination or driving of the vehicle and the opinions expressed are no more than speculation. Paragraph 6.0 at page 3 refers to "possible causes of loss of engine power" and the conclusion set out at paragraph 7.0 of the report (page 4), whilst expressing the view that the electronic control module is receiving a signal from an unidentified source, also advises that further diagnostic work needs to be done. 69For these reasons the report is of no assistance in identifying the cause of the engine fault and in that sense is not significant new evidence. 70For these reason the appellant has failed to establish a substantial miscarriage of justice for any of the reasons provided by Schedule 4, cl 12(1) and leave to appeal is therefore refused. 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