The appellant ("Outlaw") appeals from a decision of the Tribunal ordering it to pay the respondent, Mr Taleb, $4,774 as damages for Outlaw's failure to comply with the Australian Consumer Law guarantee that the services provided by Outlaw to Mr Taleb were to be rendered with due care and skill.
For the reasons set out below leave to appeal is refused and the appeal is dismissed.
[2]
Background
The factual background to the parties' dispute is adequately summarised in the Tribunal's reasons as follows:
"The applicant engaged the respondent to build him a custom-made tray for his 2020 Toyota Hilux utility, to hold the applicant's aluminium canopy, for a cost of $6,250.00.
The applicant collected his vehicle from the respondent on 24 November 2020.
The applicant paid the respondent $6,250.00 on 24 November 2020.
The vehicle developed electrical issues. Half the sensors were not working and there were issues with the rear lights. The electrical issues were repaired by Toyota, at a cost of $1,000.00. The respondent paid some compensation to the applicant for this loss.
The powder coating on the canopy and tray started to bubble and peel.
The water tank developed a leak, due to cracks in the welding.
On 8 January 2021, the applicant was on holidays at Umina holiday park and noticed that his Hilux was slanting at the back. The applicant realised that approximately 90% of the welds had cracked open and his tray was detaching from the chassis."
Mr Taleb commenced proceedings in the Tribunal against Outlaw alleging that s 60 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the "Australian Consumer Law" or "ACL") applied to the transaction - namely that Outlaw supplied services to Mr Taleb in trade or commerce, that Mr Taleb was a consumer, and therefore that there was a guarantee that the services supplied by Outlaw to Mr Taleb would be rendered with due care and skill.
There was no issue before the Tribunal, nor on this appeal, that Mr Taleb was a consumer, that the services supplied by Outlaw were supplied in trade or commerce, that the guarantee provided for in s 60 applied to this transaction and that the Tribunal otherwise had jurisdiction to determine the dispute.
The Tribunal made orders on 25 March 2021 for the parties to file and serve the evidence upon which they intended to rely at the hearing before the Tribunal. Mr Taleb filed and served his evidence, but Outlaw did not. The Tribunal found that written notification of the orders made on 25 March 2021 was posted to Outlaw at two different addresses and that the posted notifications were not returned undelivered.
At the commencement of the hearing before the Tribunal Outlaw applied for an adjournment of the hearing "so that (Outlaw) could have an opportunity to present (its) case". The application was refused.
The only written reasons appearing in the Tribunal's decision for refusing the adjournment application was that:
"The Tribunal was satisfied that it was in the interests of justice, as well as being quick and cheap, for the hearing to proceed."
Given the reference to the posting of the orders of 25 March 2021 to Outlaw, we infer that the Tribunal was satisfied that Outlaw had received notice of the orders and was satisfied that Outlaw had had a reasonable opportunity to file and serve the evidence upon which it intended to rely at the hearing.
Insofar as Outlaw relied on evidence from Mr McPherson, who appears to be the principal of Outlaw and who was intimately involved with the work undertaken by Outlaw for Mr Taleb, Mr McPherson was permitted to and did give oral evidence at the hearing, as well as cross-examining Mr Taleb.
Insofar as Outlaw may have wished to call evidence from other lay or expert witnesses at the hearing before the Tribunal, that evidence, or at least the substance of it, was not filed and served on this appeal. This fact is of significance to the determination of one ground of appeal and we shall return to it later in these reasons.
Mr Taleb gave evidence, to the effect of that set out at [3] above. Mr McPherson gave evidence on behalf of Outlaw.
Two experts gave evidence in support of Mr Taleb's case. Their evidence was uncontested, and unchallenged, and was accepted by the Tribunal. The Tribunal summarised their evidence as follows:
"The applicant provided a report from Peter Luke of Luke Bodyworks. Mr Luke inspected the applicant's vehicle on 18 January 2021. Mr Luke noted that, "on inspection it was found that all six mounts showed significant failure and needed to be replaced as soon as possible. Failure had occurred due to the use of significantly lighter materials. 3 mm pressed aluminium sheet welds were completely torn away from the main runners. Powder coating has also shown signs of failure due to poor surface preparation.
…
The applicant provided a report from Boss Smash & Mechanical Repairs that stated: "After inspecting Toyota Hilux rego no YKG65X. The body mounts are inferior to what is required for a vehicle that has the capabilities to go off road looking at the material they manufactured of is only 3mm aluminium which is not strong enough to carry the body that is mounted on the tray."
Mr Taleb also sought to tender expert evidence from a third expert, Comptune Engineering, but the report was not admitted due to late service.
The Tribunal found in Mr Taleb's favour.
It reasoned to its conclusion as follows:
"The Australian Consumer Law provides that services provided to a consumer must be supplied with due care and skill.
The Tribunal finds that the services supplied by the respondent to the applicant were not supplied with due care and skill. All six mounts failed within seven weeks of the vehicle being delivered to the applicant. All six mounts need to be replaced as soon as possible. The tray made by the respondent is not strong enough. The vehicle is a danger to the applicant, his family and other road users. Powder coating has also shown signs of failure, due to poor surface preparation.
The Tribunal finds that the failure to comply with the Australian Consumer Law guarantee that services will be provided with due care and skill is a major failure.
The Tribunal finds that the applicant was entitled to reject the respondent's offer to repair the tray.
The Tribunal finds that it is not appropriate to order a refund, as the applicant does not want to return the tray, he wants to have it repaired by another tradesperson.
The Tribunal orders the respondent to pay the applicant damages of $4,774.00, (the amount quoted by Luke Bodyworks)."
One defence, or partial defence, raised by Outlaw before the Tribunal was that it had not been given an opportunity to inspect Mr Taleb's vehicle (after the defects became apparent), and that Mr Taleb was required to return the vehicle to Outlaw to rectify any defects in accordance with the ACL and guidelines published by the Australian Competition and Consumer Commission ("ACCC") relating to warranties applicable to the ACL.
Mr Taleb had given evidence that he had made the vehicle available for inspection by Outlaw, at his home at Greenacre, on any day except weekends.
Despite maintaining on this appeal that it had not been given any opportunity to inspect the vehicle, Outlaw said in its written submissions on this appeal, twice, that it was in fact given the opportunity to inspect the vehicle at Mr Taleb's home. Outlaw submitted, in writing, that it did not take up that opportunity because it could not afford to lose one day's paid work and jeopardise the progress of other customer's work (at [28] of the appellant's submissions dated 25 July 2021) and, in its written submissions dated 17 August 2021 at [49]:
"Unfortunately, due to the Appellant's heavy workload (and COVID restrictions), it was not possible for the Appellant to do this. The Appellant had to balance up his priorities to his then customers, and then the Respondent. It would have taken the Appellant the best part of a working day to drive to Greenacre, then complete the return trip to Cardiff for this examination of the Respondent's vehicle."
Given those submissions, the contention by Outlaw that it had not been given the opportunity to inspect the vehicle was incorrect.
In relation to the contention that the ACL (or some other law) required Mr Taleb to return the vehicle to Outlaw to rectify any defects, it is evident that Tribunal rejected that contention. The Tribunal did not provide any reasons for doing so but the contention was correctly rejected. We shall return to this issue below.
[3]
Grounds of Appeal
Outlaw's grounds of appeal and written submissions were less than clear, but it is apparent that it was advancing three grounds of appeal (which was confirmed by Outlaw's solicitor during oral submissions). Those grounds were:
1. The Tribunal erred in law in failing to apply the correct legal provisions, namely that the law required Mr Taleb to return the vehicle to Outlaw to have the defects rectified under warranty (rather than ordering the payment of compensation).
2. The Tribunal's decision was not fair and equitable because Mr McPherson's evidence was given "scant attention" and his "input" was not considered.
3. Outlaw was denied procedural fairness because it did not receive the orders made on 25 March 2021 and was denied the opportunity to lead evidence in support of its case.
Grounds 1 and 3 involve questions of law and so may be appealed as of right - s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). Ground 2 requires leave to appeal as it does not give rise to a question of law and falls under cl 12 of Schedule 4 of the NCAT Act.
It is convenient to deal with Grounds 1 and 3 first, and then Ground 2.
[4]
Ground 1
The substance of Ground 1 was that the Tribunal allegedly erred in law in failing to apply the correct legal provisions, namely that the law required Mr Taleb to return the vehicle to Outlaw to have the defects rectified under warranty (rather than ordering the payment of compensation). Outlaw submitted:
"Furthermore, as the then Applicant refused to return the tray to Cardiff NSW for examination and inspection, the then Respondent was of the opinion that the Tribunal Member was wrong in her application of ACL."
No statutory provision was identified by Outlaw which had the effect contended for, neither in written or oral submissions and despite our invitation to do so on more than one occasion. No such provision requiring a court or Tribunal to order repair under warranty rather than compensation exists in the ACL, nor the Fair Trading Act 1987 (NSW) ("FTA"), nor in any other statute of which we are aware.
Outlaw based its submission on a document headed "ACCC POLICY ON WARRANTIES APPLICABLE TO THE AUSTRALIA CONSUMER LAW".
Not only does that ACCC policy lack any legal effect (in the sense contended for), it does not say what Outlaw contended for.
Read correctly, all the policy document describes is what warranties are, and that they may be provided and relied upon. So much is basic contract law. But it also says, expressly, that any rights under a warranty are in addition to, but do not exclude, any rights under the ACL. Relevantly, it says:
"A warranty is a voluntary promise or commitment made by the business selling the product/service to you. When you buy the product/service, the warranty becomes a right. It operates in addition to a consumer guarantee, however it cannot limit or exclude consumer guarantees."
(Emphasis ours)
The Tribunal found in favour of Mr Taleb in relation to his claim under the consumer guarantee provided by s 60 of the ACL, a consumer guarantee which the policy document relied upon by Outlaw said could not be limited or excluded by any warranty. Therefore, the warranty did not prevent the Tribunal from ordering the payment of compensation as it was entitled to do pursuant to s 267 of the ACL and s 79N of the FTA.
In those circumstances Ground 1 is rejected.
[5]
Ground 3
Outlaw says it was denied procedural fairness because it did not receive the orders made on 25 March 2021, and was denied an adjournment, and was therefore denied the opportunity to lead evidence in support of its case.
Other than making that bare assertion, no attempt was made by Outlaw to grapple with the Tribunal's implied finding of fact that it had received the Tribunal's notices of the orders of 25 March 2021, nor the discretionary decision to refuse the adjournment application made at the commencement of the hearing before the Tribunal.
No attempt was made by Outlaw to identify any question of law said to arise in relation to these issues, or to identify any other ground of appeal which may arise therefrom for which leave to appeal may have been sought.
We can see no obvious error in the Tribunal's finding of fact or refusal of the adjournment application, and, just as we are not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point - see Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] - equally we are not required to undertake a detailed, partisan analysis of all of the material with a view to determining whether the Tribunal erred in some respect when the appellant was legally represented and failed to do so.
As Outlaw was given notice of the hearing, and the requirement to file and serve the evidence upon which it relied, it could not now complain of procedural unfairness. As was said by Basten JA, with whom Barrett and Ward JJA agreed, in Shi v ABI-K Pty Ltd [2014] NSWCA 293 at [50]:
"A party who has a reasonable opportunity to present his or her case and fails to make the most of it cannot later be heard to complain that there has been procedural unfairness."
Outlaw has a further difficulty with this ground.
Where an appellant contends that it was denied the opportunity of a fair hearing because it was denied the opportunity to lead certain evidence, an Appeal Panel will not intervene if the unfairness could not possibly have made a difference to the outcome of the case - Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 146. Usually that is done by tendering on appeal the evidence relied on, or at least the substance of it.
In this case the appellant did seek to tender some evidence, but none of it was relevant to or probative of the issues in dispute. That is, Outlaw tendered character evidence in relation to Mr McPherson (which is inadmissible in a civil case, and would have no weight in the Tribunal which is not bound by the rules of evidence), Mr McPherson's trade qualifications (which are not to the point), correspondence between the solicitors (which proves nothing of any relevance) and outlines of evidence in Outlaw's written submissions which was said that Mr McPherson could give, but which had no relevance or probative value to the factual issues in dispute. That is, the outlined evidence was directed primarily to the existence of the warranty and like matters, but not to the basal issue of whether the services supplied were rendered with due care and skill.
Of course, Mr McPherson did give oral evidence at the hearing, and so he was not denied any opportunity to give such evidence as he desired, and thus any of this outlined evidence did not fall into the category of evidence which he was prevented from adducing at the hearing. Even so, had he done so, in our opinion there was no possibility of a different result had any of that evidence (including his character references, trade qualifications and solicitors' correspondence) been given to the Tribunal.
That is primarily because Mr Taleb led expert evidence from two independent experts to the effect that the services supplied were not rendered with due care and skill. No independent expert evidence contradicting that evidence has been led by Outlaw. Given there was no dispute as to the existence of the faults which appeared so soon after the services were provided, and in light of that independent expert evidence, there is no possibility that the Tribunal would have decided other than it did even had this additional evidence been led by Outlaw.
In those circumstances Ground 3 is rejected.
[6]
Ground 2
Outlaw says that the Tribunal's decision was not fair and equitable because Mr McPherson's evidence was given "scant attention" and his "input" was not considered.
This is primarily directed to the reliance on the warranty and the (incorrect) legal proposition that the law required the Tribunal to direct Mr Taleb to have his vehicle repaired by Outlaw under warranty rather than award him damages for breach of the consumer guarantee.
Insofar as the contention travels beyond the warranty point, there is no merit to it.
The particular evidence and "input" was not identified, its relevance to any of the issues in dispute was not explained and no submissions were made how any of the evidence or "input" would, assuming it had not been taken into account, would have made a difference in this case where there was no dispute that Mr Taleb was a consumer, that the services supplied by Outlaw were supplied in trade or commerce, that the guarantee provided for in s 60 applied to this transaction, that the faults occurred very soon after the services were provided and in light of the unchallenged and uncontradicted evidence from two independent experts to the effect that the services provided were not rendered with due care and skill.
In those circumstances, we are not satisfied, per cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) that Outlaw may have suffered a substantial miscarriage of justice because the Tribunal's decision was not just or equitable. No unjustness or inequity is apparent to us, and none was identified by the appellant. Merely submitting that the evidence was given scant attention is not sufficient, the appellant is required to show how that evidence was relevant to the issues in the proceedings and how it was sufficiently probative of the appellant 's case to have warranted close attention.
A Tribunal is not required to refer to all of the evidence in its reasons, nor record every argument - Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed, at [56]-[67]. A Tribunal should refer to critical evidence and substantive arguments (Pollard at [59] and [62]), but the appellant has not identified any evidence or arguments not considered by the Tribunal (other than the warranty point which had no substance) and has not explained why they were critical, or substantive respectively, and therefore should have warranted express attention in the Tribunal's reasons. None are apparent to us.
[7]
Other Contentions
Outlaw provided its written submissions in reply on 17 August 2021, only one full working day before the hearing of the appeal.
In those submissions Outlaw raised, for the first time, other potential grounds of appeal such as bias, an erroneous finding by the Tribunal that the failure was a major failure and other matters.
Other than mentioning those matters in its submissions, Outlaw (which was legally represented) did not apply to amend its Notice of Appeal. Had it done so it would have been refused because of the late notice of these new grounds and the inevitable prejudice to Mr Taleb in having to meet those grounds at such short notice. No explanation was proffered by Outlaw as to why notice of those new grounds was given so late.
[8]
Orders
We make the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
3. If any party desires to make an application for costs of the appeal:
1. that party is to inform the other party of that application within 14 days of the date of this decision;
2. the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of this decision;
3. the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of this decision;
4. any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of this decision;
5. the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers.
[9]
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: 27 August 2021
Parties
Applicant/Plaintiff:
Outlaw Construction and Transport Services Pty Ltd