This is an appeal by a homeowner from the Tribunal's decision to dismiss his claim against a carpenter for allegedly faulty building work.
The two central issues on this appeal are whether the Tribunal erred in its treatment of two expert reports tendered by the appellant and the adequacy of the Tribunal's reasons.
For the reasons set out below we are of the opinion that the appeal must be upheld, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for hearing according to law.
[2]
Background
In July 2019, the appellants asked the respondent to quote on the construction of an outdoor entertaining area. The terms of the request are not in evidence before us either in documentary form (if the request was in writing or was contained in a witness statement) or by way of oral evidence given at the hearing before the Tribunal (the sound recording was not available due to a technical fault at the time of the hearing).
On 24 July 2019, the respondent emailed his quote to the appellants. The quote said:
"As discussed last week please find below the revised quote for the outdoor structure as detailed below. The quote does not include any painting.
1 The use of most of the existing timber structure.
2 New merbau 90 x 90 posts including 1 extra post.
3 New merbau handrail and stainless steel wire to existing position.
4 New roofline to be cut into existing roof above beam and at about 4 degrees.
5 New metal roof sheets and new clear poly sheets.
6 New LVL beam to support existing and new merbau beams under posts.
7 New guttering, eaves, fascia and downpipes.
8 Provision of lighting plug bases (lights to be provided by owner).
9 New villa board lining ceiling and area near house to be exposed merbau feature.
10 All rubbish removed from site.
The quote to complete this is $8,850.00 ex GST."
The work was done, and the respondent was paid.
The appellants complained that during and after finalisation of the work (on 15 November 2019) there had been persistent issues with water penetration through the roof of the construction resulting in gyprock dampness and other damage.
The appellants asked the respondent to attend and make good the water penetration issues but he did not do so.
The appellants commenced proceedings against the respondent in the Tribunal seeking compensation in the sum of $7,500 compensation being the estimated cost of rectification of the alleged defects and repairs for the damage allegedly caused.
In those proceedings the appellants alleged that the roof sheeting was defective in relation to the length of the overhang over the gutters, the roof sheeting used was inappropriate for a roof of this pitch, no appropriate lining was installed under the roof and the roof flashing was defectively installed.
As part of their case the appellants sought to tender two expert reports: one by Stephen Reay dated 30 August 2021; the other by an unidentified person from "Rizon" dated (site attend date) 5 August 2021.
The Tribunal's reasons for decision were brief. The Tribunal said:
"This is a home building claim which asserts that the builder was not qualified to do the work in question, the suitability of the material used and also the quality of the work performed.
There is an uncontradicted assertion by the respondent that his Fair Trading licence allows him to carry out the work, he did.
The correspondence from Fair Trading makes no mention of any restrictions which would prohibit him from the work, the other main contention of the applicant is that the pitch of the roof was wrong, he relies upon photos of a iphone which has an app which acts like a carpenters level to show the pitch of an object.
The device, its accepted margin for error [ if any] and any special requirements for its use are not known. There is also contradictory evidence about the material used, and its suitability for the use to which it was put.
It is a fundamental principle of any claim for damages that the applicant prove the case brought to the civil standard of proof.
Whilst the material is well presented and the applicant argued forcefully for his case, the lack of compelling expert opinion to support his arguments did not assist.
Makita v Sprowles [Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 7] sets out the requirements for an expert report including a statement as to the qualifications and experience of the maker, the fact that the item in question was examined, and based on the maker's qualification and experience, the following opinions are made. A letterhead alone does not make a report an expert one, and in any event, the tribunal of fact needs to be persuaded by the report and to regard it over contradictory material.
The critical problem with this matter is that the reports relied upon lacked any disclosure of expertise, methodology or experience of the maker.
In the circumstances, I find for the respondent."
The fourth (last sentence), seventh and eighth paragraphs of that quote are the relevant passages for this appeal.
[3]
The Appeal
In our opinion there are two interrelated errors of law the Tribunal fell into in those paragraphs of its reasons. The first was raised by the appellant in his Notice of Appeal and the second became apparent to us when reading the material lodged for the appeal. We are required to consider the second matter because, as the Appeal Panel said in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:
"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal."
The point raised by the appellant relates to the Tribunal's approach to the experts' reports. The point which became apparent to us is the inadequacy of the Tribunal's reasons. We shall deal with the two points together but beginning with the second point first.
[4]
Decision
Tribunals are required to provide a minimum acceptable standard of reasons.
That minimum acceptable standard will vary from case to case, but generally speaking a Tribunal is required, in its reasons, to describe any conflicting evidence of a significant nature, consider any documentary material arguably supporting a party's case in a satisfactory way and avoid using bald conclusionary statements - see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed, at [62]-[64].
In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA, with whom Payne JA and Simpson AJA agreed, said at [18]:
"It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn."
Those things referred to in those two cases the Tribunal did not do.
In the last sentence of the fourth paragraph of its reasons the Tribunal said that there was contradictory evidence about the material used (as roofing) and its suitability for the use to which it was put. This was a reference to one of the appellant's chief complaints that the roof sheeting on this roof was unsuitable and should not have been used.
Yet, the Tribunal did not describe the conflicting evidence to which it was referring and did not consider the documentary material arguably supporting the appellant's case on that point at all, let alone in a satisfactory way.
Two examples will suffice.
First, the documentary material included an information brochure produced by the manufacturer of the roofing product used together with an email from the manufacturer which said that the subject roofing material:
"… is not recommended to be installed in residential applications with a 2 degree roof pitch with an eaves gutter. Minimum roof pitch must be 3 degrees for residential applications."
There was evidence before the Tribunal that the roof pitch was 2 degrees. There was no dispute that the roof was for a residential application and no dispute that an eaves gutter system had been installed. It is true that there was conflicting evidence about the roof pitch, but that conflict was also not dealt with in the Tribunal's reasons.
Second, there was a formal written admission by the respondent in the Scott Schedule to the effect that the length of the roofing sheets was incorrect vis-à-vis the overhang into the eaves gutter. The respondent went on to say that that would not have caused any water ingress, but that is a different point. At least on the issue of whether there had been proper installation by installing roof sheets of the correct length, this written admission was not considered.
The other feature of the Tribunal's reasons is the lack of reasons regarding the expert reports and whether they were admitted into evidence or not.
The case referred to by the Tribunal, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, is often cited in cases in which the rules of evidence apply for the general propositions found in the judgment of Heydon JA, as his Honour then was, relating to the admissibility of expert reports. His Honour's analysis commenced at [59] wherein his Honour said:
"If Professor Morton's report were to be useful, it was necessary for it to
comply with a prime duty of experts in giving opinion evidence: to furnish the
trier of fact with criteria enabling evaluation of the validity of the expert's
conclusions."
His Honour then examined a number of common law authorities before turning to the relevant provisions of the Evidence Act 1995 (NSW) which apply to opinion evidence (of which expert reports are a type) commencing at [83].
One central part of his Honour's judgment was that which appears at [85]. In that paragraph his Honour said;
"In short, if evidence tendered as expert opinion evidence is to be admissible,
it must be agreed or demonstrated that there is a field of "specialised
knowledge"; there must be an identified aspect of that field in which the
witness demonstrates that by reason of specified training, study or experience,
the witness has become an expert; the opinion proffered must be "wholly or
substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on
"assumed" or "accepted" facts, they must be identified and proved in some
other way; it must be established that the facts on which the opinion is based
form a proper foundation for it; and the opinion of an expert requires
demonstration or examination of the scientific or other intellectual basis of the
conclusions reached: that is, the expert's evidence must explain how the field
of "specialised knowledge" in which the witness is expert by reason of
"training, study or experience", and on which the opinion is "wholly or
substantially based", applies to the facts assumed or observed so as to produce
the opinion propounded. If all these matters are not made explicit, it is not
possible to be sure whether the opinion is based wholly or substantially on the
expert's specialised knowledge. If the court cannot be sure of that, the evidence
is strictly speaking not admissible, and, so far as it is admissible, of diminished
weight. And an attempt to make the basis of the opinion explicit may reveal
that it is not based on specialised expert knowledge, but, to use Gleeson CJ's
characterisation of the evidence in HG v The Queen (at 428 [41]), on 'a
combination of speculation, inference, personal and second-hand views as to
the credibility of the complainant, and a process of reasoning which went well
beyond the field of expertise'."
(Emphasis ours)
But in proceedings such as the one before us, the rules of evidence do not apply - s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
The Appeal Panel in Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 held, at [191] that the approach to expert reports in the Tribunal, given s 38(2), was that the question of the acceptability of expert evidence will not be one of admissibility, but of weight.
The Appeal Panel said at [191]:
"In these situations, the question of the acceptability of expert evidence in the Tribunal will be one of weight not admissibility. In addition, the Tribunal is required to be satisfied that expert evidence provides a satisfactory basis upon which it can make its findings. The requirement that the expert evidence provides a satisfactory basis for the making of findings by the Tribunal is reflected in:
(1) the Tribunal's procedural direction dealing with expert evidence, issued in February 2014 by the President under s 26 of the NCAT Act, NCAT Procedural Direction 3 - Expert Evidence ….
(2) …"
We are unable to determine from the Tribunal's reasons whether the reports were or were not admitted into evidence.
If not admitted (which would be consistent with the Tribunal's reference to Makita) the Tribunal erred because of s 38(2) of the NCAT Act.
If they were admitted, then as Makita makes clear in the passage quoted above, reports which do not include the matters referred to by Heydon JA may have diminished weight, rather than no weight at all. We are unbale to discern from the Tribunal's reasons whether the Tribunal gave them no weight, or some weight.
At least with the report of Mr Reay, it seems to us it was entitled to some weight because a number of his opinions were corroborated by the documentary evidence to which we have referred (but which was not dealt with by the Tribunal).
The Rizon report, to an extent was corroborated by Mr Reay's report and so entitled to some weight (even if very little), although the Tribunal's criticism that a "letterhead alone does not make a report" is well founded (given the author of the report was not identified, nor that person's training, study or experience set out which entitled him/her to proffer the opinions contained in the report).
In those circumstances the weight of that expert evidence tendered by the appellant (corroborated to a degree by the documentary evidence) had to be balanced against the evidence against it. We were told that the respondent purported to give expert evidence himself, but without any independent expert evidence. The lack of independence would go to weight, but none of that evidence was referred to by the Tribunal in its reasons.
Therefore, the Tribunal had before it some independent expert evidence for the appellant which was corroborated in part by other documentary material, and non-independent expert evidence for the respondent.
Perhaps that was what the Tribunal was referring to when it said:
"… the tribunal of fact needs to be persuaded by the report and to regard it over contradictory material."
What that contradictory material was is not identified, nor why (it seems) the Tribunal preferred it over the evidence to which we have referred.
For all of those reasons we are of the opinion the Tribunal erred in failing to provide adequate reasons and erred in its approach to the experts' reports upon which the appellant relied.
There will have to be a new hearing. Of course, what we have said above does not mean that the appellant is entitled to succeed in his case, as the respondent raised other defences which were also not referred to by the Tribunal and, we infer, not adjudicated upon.
[5]
Orders
We make the following orders:
1. Appeal upheld.
2. The order of the Tribunal made on 4 November 2021 is set aside.
3. The matter is remitted to the Tribunal, differently constituted, to be determined according to law.
[6]
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
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Decision last updated: 25 February 2022