Patrizi t/as Patrizi Motor Repairs v Garstang

NCAT Appeal Panel|2016-04-15|Before: Dr J

Overview

In April 2015, Ms Garstang, the Respondent on the appeal, delivered her Alfa Romeo 2000 Spider to Mr Patrizi, the Appellant, at his home in Lilli Pilli for him to carry out some repairs to the vehicle. For nearly 40 years, Mr Patrizi had carried on the business of Patrizi Motor Repairs in Carlton, Sydney. Ms Garstang had been a customer of that business. Ms Garstang continued to use Mr Patrizi for repair work after he retired from this business and moved to Lilli Pilli, near Batemans Bay. Both Ms Garstang and Mr Patrizi were members of the Alfa Romeo Owners Club of New South Wales.
In the Tribunal below, Ms Garstang succeeded on her claim that the car had suffered some damage whilst in Mr Patrizi's care for the purpose of repair work. Mr Patrizi was ordered to pay Ms Garstang the sum of $661.29 immediately. Included in that sum was the sum of $200.00 covering the filing fee for Ms Garstang's application in the Tribunal below. That sum should not have been awarded in Ms Garstang's favour because the rule is that each party must bear their own costs of Tribunal proceedings concerning this size of claim unless special circumstances warrant a costs order: see s60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) and also Rule 38 of the Civil and Administrative Tribunal Rules 2014. The Tribunal gave no indication that it considered that special circumstances warranted an award of costs. Accordingly, that error must be corrected.
Mr Patrizi appeals against the whole of the amount that he was ordered to pay. His contentions include that there was no evidence to establish his liability and that the Tribunal below did not adequately explain why he was found to be responsible for the damage.
For the reasons set out below, whilst the reasons of the Tribunal are open to criticism, we do not uphold Mr Patrizi's submissions. In our opinion, the appeal should be dismissed, save as to the error about the filing fee.

The Decision of the Tribunal at first instance

The reasons of the Tribunal below were shortly stated as follows: Reasons for decision: 1. The applicant owns a 1973 Alfa Romeo 200 Spyder (sic) motor vehicle. I am satisfied that she kept it in excellent condition and that she maintained it carefully. 2. In 2013 (sic), she discovered that there were some things that needed repair, namely a speedo cable, and a muffler. She took it to the respondent who had previously repaired and maintained her vehicle. 3. There followed a lot of toing and froing about these repairs, but this application concerns panel damage to the beaver panel of the vehicle following on from the muffler repair. 4. The applicant provided a set of submissions. The respondent failed to file anything, but handed up a statement, and gave oral evidence on oath. 5. The evidence indicates that there was no pre-existing panel damage to the car prior to the muffler being adjusted by angle grinding by the respondent. There is evidence from 3 sources of this. The respondent has not filed any material, nor made any statements about the condition of the beaver panel. 6. The evidence shows that when the applicant collected the car, she noticed the beaver damage within a short time of driving it away. I am satisfied therefore that the damage occurred, if not by the cause of the respondent, at least whilst the car was in his possession. 7. Accordingly given that the respondent was the bailee of the car, and had the responsibility to care for it, he should be held responsible for the damage that occurred whilst he had the car in his control. 8. Evidence was given that the door sagged because of worn hinge pins, and I was invited to accept that the damage around the door was partly caused by that. I am not satisfied that this was so. However, even if it was, the issue raised by the applicant - and not refuted by the respondent - of the non-matching paint, suggests that the respondent should bear responsibility for this issue.
Whilst not specifically referred to in the reasons for decision, the repair cost of $461.29 ordered to be paid, along with the filing fee, was the subject of a quote supporting that figure from South Pacific Smash Repairs in Ulladulla, dated 11 May 2015.
On the appeal, there was no dispute that the "3 sources" of evidence referred to in the reasons consisted of evidence from Nick Powell of Protune Automotive Dyno Centre resulting from a safety check of the vehicle carried out 10 April 2015, a witness statement from Rhonda Lawry and evidence given by the Respondent.

Grounds of Appeal

Mr Patrizi lodged two Notices of Appeal.
In his first Notice of Appeal dated 8 December 2015, Mr Patrizi stated his grounds of appeal as follows: No evidence was given as to why the Tribunal Member reached either or both of his decisions, nor why I should bear responsibility for these issues. Mr Morris' decisions were based purely on conjecture and not on any evidence.
In his second Notice of Appeal dated 19 January 2016, prepared with the assistance of Mr Tunbridge of the Senior Rights Service, Surry Hills, Mr Patrizi provided the following grounds of appeal: 1. Tribunal Member erred in finding that the Appellant was responsible damage to rear beaver panel (below rear bumper bar) of Respondent's vehicle. 2. Tribunal Member erred in finding quantum of damage alleged as Respondent's repair quotation dated 11 May by John Boyle of Ulladulla includes damage to right hand front guard of Respondent's vehicle (copy repair quotation attached).
In his second Notice of Appeal, Mr Patrizi sought leave to appeal on grounds that the decision below was not fair and equitable and was against the weight of the evidence.
In support of the ground of appeal that the decision was not fair and equitable, the second Notice of Appeal stated: 1. The Tribunal member failed to consider that the respondent had burden of proving that her vehicle was damaged while in in Appellant's possession and that Respondent had failed to discharge that burden. 2. Tribunal Member failed to recognise that repair quotation relied upon by Respondent included damage to parts of vehicle other than the rear beaver panel.
Amongst these grounds of appeal, we regard Mr Patrizi (who was unrepresented) as raising three questions of law, namely: 1. The reasons for decision were inadequate. 2. There was no evidence to support the findings of liability. 3. The Tribunal did not apply the law concerning the burden of proof.
In respect of each of these questions, Mr Patrizi has a right of appeal: s 80(2)(b) of the Act.
Since the decision appealed against was a decision of the Consumer and Commercial Division, the granting of leave to appeal is governed by cl 12 of Sch 4 to the Act. Under cl 12(1), the ability of the Appeal Panel to grant leave is limited to situations in which the Appeal Panel is 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).

Consideration - Adequacy of Reasons

The reasons are short on detail as to the elements of the cause of action in bailment, as to the material evidence and as to the findings concerning damage to the vehicle beyond damage to the beaver panel.
For instance, it would have been preferable for the Tribunal below to have made specific reference to the particular feature of the cause of action in bailment which, in the circumstances here, placed the onus on Mr Patrizi to show that he exercised all reasonable care to avoid damage to the vehicle whilst it was in his custody and control: see Halsbury, Laws of Australia at [49-265]. This would have helped Mr Patrizi to understand why the decision went against him.
Nevertheless, on balance, we think the reasons are adequate. In so concluding, we are particularly influenced by the small size and lack of complexity of the claim.
In this respect, we have had particular regard to the following passages from the decision of the Appeal Panel (Wright J, President and S Thode, Senior Member) in Hernady v Raccani [2016] NSWCATAP 67: [37] In addition to the duty to give reasons for decision upon request by a party under s 62(2) of the Act, the Tribunal sitting in the Consumer and Commercial Division has a duty under the common law to give reasons for its decisions, as explained in Collins v Urban [2014] NSWCATAP 17 at [48] to [57]. Nonetheless, even if an obligation to give reasons for a decision exists, its discharge does not require lengthy or elaborate reasons but it is necessary that the essential ground or grounds upon which the decision rests should be articulated: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280….. [43] In considering the adequacy of the Tribunal's reasoning in determining the amount of the rent reduction, it is also appropriate for us to take into account the requirement in s 36(4) of the Act that the practice and procedure of the Tribunal, which in our view includes the giving of reasons for decisions, is to be implemented in such a way that the cost to the Tribunal, among others, is proportionate to the importance and complexity of the subject-matter of the proceedings and the fact that the preparation of reasons does involve a cost to the Tribunal. In the present case, these considerations support the conclusion that the reasons required to be given should not be overly elaborate and should deal with the relevant issues as concisely as possible. We believe this was achieved by the Member in this case. [44] In addition, we bear in mind the principles expounded in the authorities concerning the extent of reasons required to be given including the following: (1) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56]; (2) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]; (3) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]….. [52] The Appeal Panel considers that a Member called upon to determine claims such as the Compensation Claims, the Rectification Claim and the Cleaning Claim would generally be required to do the following in order to exercise the jurisdiction of the Tribunal, assuming that it has been properly invoked: (1) Identify each relevant claim for relief and the statutory provision or common law principle supporting the claim; (2) Identify each of the relevant elements of the causes of action which must be satisfied in order to justify granting the relief sought; (3) Make material findings of fact and law in respect of each of those elements; (4) Explain what relief, if any, should be granted and why. [53] It may be the case that the fact that these steps have been taken can be seen to be implicit in the reasons and orders made and this will be sufficient. The reasons for decision and orders of the Tribunal below concerning the amount of the reduction in rent in respect of the Rent Reduction Claim in the present case are an example of where the findings, reasoning and wording of the orders, reflecting the wording of s 44 of the RT Act, are sufficient to establish that the jurisdiction of the Tribunal has been exercised in that regard. [54] It is always preferable, however, unless circumstances do not permit, for the steps outlined above to be explicitly addressed in the reasons for decision or the orders made. As we have made clear above, in doing so the reasons do not always have to be lengthy or detailed, especially if that would be neither necessary nor proportionate. Nonetheless, the orders and reasons must make it clear that the jurisdiction of the Tribunal, where it has been properly invoked, has been exercised.
In our opinion, the following essential grounds for the decision below sufficiently emerge from the reasons : 1. The liability of Mr Patrizi was founded upon the common law of bailment. 2. Damage to the beaver panel, to the front right-hand door guard and from the application of non-matching paint occurred whilst the car was under the care and control of Mr Patrizi as bailee - implicitly, as bailee for reward. 3. To a considerable extent, the evidence supporting the finding in (2) was all one way. It was based upon three sources of evidence adduced by Ms Garstang (of which the parties would be familiar) concerning the state of the vehicle when it was delivered to Mr Patrizi. In passing, we comment that it would have been preferable for these three sources of evidence to have been specifically identified in the reasons. 4. The finding in (2) was also based upon the evidence from Ms Garstang concerning what she noticed after she had collected the vehicle (so far as damage to the beaver panel was concerned). 5. There was no specific rebutting evidence adduced by Mr Patrizi in relation to the damage to the beaver panel and non-matching paint. 6. Under the law of bailment, it followed that Mr Patrizi was responsible for the damage. Implicitly, this was so in the absence of proof by Mr Patrizi that he took reasonable care to avoid damage to the vehicle.

Consideration - no evidence and burden of proof

From the above analysis of the adequacy of the reasons, we think it also follows that Mr Patrizi's no evidence and burden of proof grounds of appeal must fail.
In relation to the damage to the beaver panel, the Tribunal below made an express finding in paragraph 6 that such damage occurred whilst the car was in Mr Patrizi's possession. The evidence of no pre-existing damage at the time of delivery to Mr Patrizi and evidence of discovery of damage shortly after collection of the car supported that finding. Such evidence also supported implicit findings that the other damage occurred whilst the car was in Mr Patrizi's possession.
In view of such evidence, and reading the reasons as a whole, the reference to "I am not satisfied that this was so" in paragraph 8, in our opinion, does not reveal error in applying the burden of proof.

Consideration - quantum of damage/inclusion of damage to right hand front guard

We are not satisfied that the Tribunal below overlooked that the sum it was awarding included repair and paint work in respect of the right front hand door guard (it is clear enough from the quote that such work is part of the total sum of $461.29).
The Tribunal below briefly addressed the subject of damage to the front door in paragraph 8 of the reasons. A ground for upholding the Respondent's claim for this damage was stated, namely the Tribunal's rejection of the Appellant's position that the damage was pre-existing damage. Reading the reasons as a whole, one can discern that this conclusion must be founded upon the weight of the evidence of no pre-existing damage, as referred to above.
Once that conclusion was reached, the conclusion of responsibility as a bailee in paragraph 7 extended to this area of damage, as well as to the beaver panel and the non-matching paint.
The introductory language of the last sentence of paragraph 8 ("However, even if it was,") arguably counts against this analysis, but when read as a whole we think the Tribunal was there expressing, in substance, an additional reason for upholding the claim in relation to the non-matching paint.
To the extent that the Appellant sought leave to appeal for this reason, we refuse such leave for the above reasons.
We do not discern any other basis upon which leave to appeal should be granted. We are not satisfied that the appellant may have suffered a substantial miscarriage of justice for any of the reasons given in cl 12(1) of Sch 4 to the Act.

Orders on the appeal

For the above reasons, we make the following orders: 1. The appeal is allowed in part. 2. The decision of the Tribunal below is set aside. 3. In lieu of that decision, the Appellant is to pay the Respondent the sum of $461.29 within 14 days. 4. Leave to appeal is refused.

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: 23 May 2016

At a glance

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