Noori v JMG Auto Parts Pty Ltd

Notice of Appeal

1. On 2 May 2022, Mr Noori filed a Notice of Appeal. The grounds of his appeal are not stated in the Notice of Appeal.
2. However, attached to the Notice of Appeal were:

• two unsigned documents (in the form of a statement/submissions) both dated 1 May 2022;
• an undated document (also in the form of a statement/submissions) dated 2 May 2022;
• some text messages between him and the respondent, undated, but filed 3 May 2022; and
• further materials including tax invoices, photographs and receipts.

1. Some of this material (such as internet reviews of other people who had used the respondent's services) were obtained by the appellant after the Tribunal hearing. We informed the appellant that unless we were satisfied that such material was not reasonably available at the time of the hearing, we would have no regard to that material for the purposes of the appeal: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.

First unsigned document dated 1 May 2022, and a further undated document dated 2 May 2022.

1. In this document, the appellant provides a detailed commentary on paragraphs [1] to [10], [27], [28], [32], 34] and [35] of the Decision. Some of this material is submissions and some evidence.
2. By way of summary, this document: 1. provides a critique of the reasons of the Tribunal; 2. attempts to introduce evidence that was not before the Tribunal; and 3. suggests that: 1. the Tribunal failed to take into account a relevant consideration; see par [12] of this statement where the appellant states in reference to par [32] of the Decision: In both mechanic's report has mentioned that car's windscreen has been cracked in engine swap process., but court has not mentioned anything about this matter. Referring to mentioned report Respondent is responsible to fix the windscreen that he has not done yet. 1. some findings of the Tribunal were against the weight of the evidence; see par [13] second bullet point where the appellant states in reference to par [34] of the Decision: In this item has mentioned that its clear that car had so many problems, can I ask what are the evidence to confirm this? (grammatical errors as in original) 1. that the Tribunal reasons of the Tribunal were inadequate, and that the Tribunal Member was otherwise deficient in their decision making; see par [15] where the appellant states in reference to par [35] of the Decision: I believe the person who investigated this claim doesn't have enough information regarding cars and engine swap. There is a mistake in spelling in court decision document where ECU has been spelled ECO, there is no issue code as ECO which indicate that person who handled my claim didn't have much technical information and didn't understand timing case is one of the engines exterior parts.
3. The document concludes with the statement: I request court to transfer my claim to someone else or department who has enough technical information regarding cars.

Second unsigned document dated 1 May 2022

1. This document is also part submission and part statement. The principal matter agitated by the appellant is that the Tribunal failed to deal with his claim that the windscreen became "cracked" by or under the care of the respondent.
2. The statement concludes with a request that the Appeal Panel make orders that he reimbursed for:

• "court and fair-trading costs which is $208". We assume this is a reference to filing fees;
• the cost of two different mechanic reports, $500;
• his costs of renting a car while his own was unavailable;
• the filing fees for the appeal, being $438.

Unsigned document dated 1 May 2022

1. The next document is the document dated 2 May 2022. This is said to "make the following extra point to add to my previous statement". Those extra point/s is/are: 17. Respondent didn't present any documents that shows car had any electrical problem, but court didn't mention this pint [sic - point] in court decision. 18. Respondent called me and he left a voicemail and i message him if you could finish your job I could pick up the car and he responded "Well you are going to wait for very long time my friends" please refer to page 35. 19. I have photos of car's windscreen before and after crack appearance and also two mechanics mentioned windscreen was cracked during engine swap process but In court decision there was not any point to mention regarding the cracked windscreen. 20. My purpose of this claim is to ask for justice. (bolding as in original)

Text messages

1. The point of these text messages is to demonstrate the point made in the bolded passage above.

Reply to Appeal

1. No Reply was filed by the respondent.
2. It did however provide two bundle of documents to the Appeal Panel, which were documents before the Tribunal on which it relied at the Tribunal hearing. The two bundles largely duplicated the other.
3. These documents included materials relied on by the respondent at the Tribunal hearing and correspondence between the parties.
4. We asked Mr Said, the owner of the respondent and who represented it at the appeal, his attitude to the appeal. In summary, he said that opposed the appeal and agreed with the Decision.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Appellant's arguments

1. We asked the appellant to identify the errors he thought were made by the Tribunal in its Decision. These can be summarised as follows.
2. First, the Tribunal failed to give sufficient attention to two tax invoices of "Neysie Performance" (Neysie) dated 29 October 2021 respectively the First and Second Neysie Invoices, together the Neysie Invoices), and a "Used Vehicle Pre-Sales Inspection" report of Talal's Mechanical Repairs dated 16 March 2022 (Talal Pre-Sales Report) in relation to the engine installed by the respondent.
3. The Neysie Invoices are both dated 29 October 2021. The one commencing "Peugeot 308" in the description section (the First Neysie Invoice) states: Peugeot 308 motor has been replaced, car running but not good, required full service and udder [sic? - under] carriage attention. Car has faulty code from engine ECU and transmission ECU. Recommend bring car too [sic - to] workshop for full inspection on codes. Front window screen broken from lower mold due to fitting motor Also customer has done computer scan with his own scanner and have same result as work shop scanner.
4. The Second Neysie Invoice states in the description section: Road tested car and found vehicle not running well. Performed computer diagnostics and found multiple fault codes in Main ECU and Transmission ECU - vehicle needs further diagnosis. Found front screen broken underneath plenum grille/lower screen mould - possibly broken when engine replacement was done. Engine oil leak from timing case. Recommend customer return to previous repairer for rectification and if not successful then Fair Trading.
5. The Talal Pre Sales Report relevantly states that: Air conditioning not working, possible not gas. Windscreen broken when engine got replaced. Fault codes in ECU. Front wiper arms not adjusted properly. Oil sweat timing case area. When checking car, car was parked in street.
6. Secondly, and this may in part be related to the appellant's first argument, the Tribunal failed to understand the evidence. In this respect, the appellant submitted that: I believe the person who investigated this claim doesn't have enough information regarding cars and engine swap. There is a mistake in spelling in court decision document where ECU has been spelled ECO, there is no issue code as ECO which indicate that person who handled my claim didn't have much technical information and couldn't understand timing case is one of the engines exterior parts. Also referring to Item 36 every mechanic knows that if a car has electrical problems, they won't get fixed by clearing the codes and if diagnostic tool to be connected to the car after driving it will show the same codes and they will appear every time unless the actual problem is fixed only then error codes won't show up in diagnostic tool monitor.
7. Thirdly, the Tribunal failed to consider his claim in relation to the windscreen which he alleged was damaged by the respondent while replacing the engine.
8. Fourthly, the Tribunal failed to give sufficient weight to the evidence of the oil leak of the replacement engine fitted into his vehicle by the respondent.
9. Fifthly, the Tribunal failed to give sufficient weight to the evidence relating to the air-conditioning defect.
10. Sixthly, the Tribunal failed to give sufficient weight to the evidence relating to the windscreen wipers.
11. We note that during the course of the appeal hearing the appellant stated that the last two matters did not "bother me much".

Respondent's arguments

1. Mr Said simply relied on the Decision, the conclusions of which he said the Tribunal was correct in making.

The Decision

1. Before considering the matters raised by the appellant, we think it useful to summarise the Decision.
2. The Tribunal commences the Decision by summarising the appellant's claims and the respondent's response: pars [1] to [5]).
3. The Tribunal then addresses various procedural matters relating to the hearing mode and the filing of evidence: pars [6] to [8].
4. The Tribunal then at [10] sets out the five issues it considered were necessary to decide: Firstly, is the Applicant a Consumer for the purposes of the legislation? Secondly, does the Tribunal have jurisdiction to hear this matter. Thirdly, is there a breach of the consumer guarantees? Fourthly, whether there is a breach of contract? Finally, what is the remedy available for the Applicant?
5. The Tribunal then describes its jurisdiction: [11] to [14].
6. The Tribunal then sets out the relevant legal principles to be applied, and notes the relevant provisions of the Fair Trading Act 1987 (NSW) and the Australian Consumer Law (ACL): [15] to [22].
7. At [23] to [38] the Tribunal sets out its consideration of the appellant's claim.
8. In summary, in relation to the appellant's claim that the respondent had breached the contract between them:

• the Tribunal found that the appellant and respondent had an agreement only for the supply and installation of an engine ([26]);
• the core terms of that agreement word fulfilled by the respondent, and that there was no breach of a contract for the supply of goods and services ([28]); and that therefore,
• the appellant was not entitled to any damages arising out of a breach of contract ([29]).

1. The Tribunal then turned to the question of whether there was a breach of any consumer warranty under the ACL. The Tribunal stated: 31. The Applicant states that the engine was not installed with due care and skill. It is not clear in his claim whether the applicant is claiming that the engine supplied itself is defective. Either way, the applicant relies on the same evidence. 32. The Applicant relies on a vehicle inspection report by "Talal's Mechanical Repairs dated 16/3/2022. It has multiple errors including Air Conditioner not working. There is no specific reference to the engine. Perhaps the reference to "fault codes in ECO" has something to do with the engine. However there is nothing specific elaborated on anything to do with the engine that is independent with the electronic system. This weakness in evidence is shared by the rest of the invoices from Neysie Auto Service. However, there is a reference to "engine oil leak from the timing case" on the invoice dated 29/10/2021. I do not have any evidence whether that is defect from the engine or some other component in the car. 33. For the [T]ribunal to make a finding that the Respondent departed from the due care and skill, it has to either have direct evidence or it should be able to deduce from inference. 34. The car was bought for $2250 from a dealer who did not provide dealer warranty for car. Clearly the car has multiple defects. However, I do not have any causative evidence if defects flow from any failure of service delivery standards or the goods provided by the Respondent. 35. The applicant has the burden of proof to establish his case. He has established that there are many defects in the car. He has however not established by evidence that the services were not rendered with due care and skill. 36. The Respondent provided an invoice stated 2/3/2022 from one AZZ Auto Electricals that stated that all the electronic faults were cleared. 37. In this context, I make a finding that the Applicant has not established a breach of a consumer warranty under the ACL. Therefore, it is not relevant to pursue whether the applicant is entitled to any remedy.
2. It is against that background we now turn to consider the appellant's arguments.

Question of law?

1. In Prendergast, the Appeal Panel stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
2. We have undertaken that exercise. The is one question of law we can clearly identify. There is another which is less clear.
3. The question of law that is clearly identified is whether the Tribunal failed to consider a relevant issue, namely the cracking of the windscreen.
4. In this respect we note that in Weston v Integra Windows and Doors Pty Ltd [2022] NSWCATAP 201 the Appeal Panel stated at [37]: A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. While "windscreen repair costs" is referred to in the "Background" section of the Decision, there is no explicit finding of consideration of this issue by the Tribunal.
6. We asked both parties whether or not this issue was in fact before the Tribunal, and they agreed that it was. And Mr Said told us that he told the appellant that costs of repairing the windscreen was $350 to $400.
7. However:

• while apparently there was evidence before the Tribunal about this, this evidence was not provided to the Appeal Panel; and
• neither party provided a transcript of the hearing before the Tribunal or a sound recording of the hearing.

1. In those circumstances, we are unable to conclude that the evidence before the Tribunal was sufficient to support the assertion that the respondent damaged the windscreen while it was replacing the appellant's engine.
2. While we consider that the failure of the Tribunal to consider the appellant's claim in relation to the windscreen raised a question of law, we are unable to conclude that the respondent breached the terms of its contract with the appellant.
3. We would not allow the appeal for this reason.
4. The other question of law which is faintly raised by the appellant is whether the Tribunal's reasons were inadequate? We have summarised those reasons below. In our view, the structure of the Decision and the reasons for decision were entirely orthodox, the Tribunal setting out the relevant principles to be applied and making relevant findings of fact.
5. In our view, nothing has been presented by the appellant to warrant the Appeal Panel setting aside the Decision for this reason.
6. Accordingly, we would not allow the appeal on this basis.

Appeal on other grounds?

1. That leaves for consideration the first, second, fourth, fifth and sixth matters raised by the appellant which we have summarised above. We shall deal with each in turn.
2. The first matter raised by the appellant was that the Tribunal failed to give sufficient attention to the Neysie Invoices and the Talal Pre-Sales Report in relation to the engine installed by the respondent. The principal point is that the Tribunal failed to give sufficient weight to the comment in the Second Neysie Invoice that there was an "engine oil leak from timing case area".
3. The Tribunal specifically referred to the Second Neysie Invoice at [32]: However, there is a reference to "engine oil leak from the timing case" on the invoice dated 29/10/2021. I do not have any evidence whether that is a defect from the engine or some other component in the car.
4. If there was other evidence before the Tribunal about this, this evidence was not provided to the Appeal Panel, and, as we have noted neither party provided a transcript of the hearing before the Tribunal or a sound recording of the hearing.
5. Applying the tests set out above, we do not consider that the appellant has raised a matter warranting a grant of leave.
6. The second matter raised by the appellant was that the Tribunal has insufficient expertise or technical knowledge to understand the evidence and therefore to decide his application.
7. As we explained to the appellant during the hearing, the role of the Tribunal was to determine his application on the basis of the evidence before it and applying the relevant law. We noted that there was no expert evidence before the Tribunal and that the Tribunal had to consider the matter solely on the evidence before it.
8. We do not consider that, in respect of this matter, the appellant has raised a matter warranting a grant of leave.
9. The fourth matter raised by the appellant was that the Tribunal failed to give sufficient weight to the evidence of the oil leak of the replacement engine fitted into his vehicle by the respondent.
10. The error overlaps with the first matter.
11. For the reasons stated above, we do not consider that the appellant has raised a matter warranting a grant of leave.
12. The fifth and sixth matters raised by the appellant can be considered together. The fifth matter was that the Tribunal failed to give sufficient weight to the evidence relating to the air-conditioning defect. The sixth matter was that the Tribunal failed to give sufficient weight to the evidence relating to the windscreen wipers.
13. The issues in the application before the Tribunal was whether the respondent was responsible for attending to electrical faults generally, as well as the mechanical faults in the engine. As noted, the Tribunal found that the contract between the parties was for the supply and installation of an engine.
14. As to the air conditioning defect, the appellant relies on the Talal Pre-Sales Report which simply states "air conditioning not working, possible not gas".
15. As to the windscreen wipers, again the only evidence appears in the Talal Pre-Sales Report which states "front wiper arms not adjusted properly".
16. It appears that neither matter was raised before the Tribunal. If either was, there was no evidence before us that was provided to the Tribunal (save for what we have just referred to), no transcript of the proceedings nor a sound recording of those proceedings. In the circumstances, applying the tests set out above, we do not consider that the appellant has raised a matter warranting a grant of leave.

Conclusion

1. In summary, an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple, in passages relied on by the respondent: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
2. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
3. This appears to be what the appellant is seeking to do.
4. To the extent that the appeal raises error other than a questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Orders

1. The Appeal Panel orders 1. In relation to any question of law, the appeal is dismissed. 2. In relation to any other grounds, leave to appeal is refused.

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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: 29 July 2022