The issues on this appeal and application for leave to appeal are whether there is any demonstrated error of law, and if not, whether leave to appeal should be granted. We answer 'no' to both those questions, and for the reasons which follow, refuse leave and dismiss the appeal.
[2]
Proceedings before the Tribunal
Susan Rae Radcliffe (the owner) retained Tile Rescue Pty Ltd (the tiler) to undertake work at the owner's premises, and in particular, to regrout and clean the bathroom tiles and to provide a colour seal when painting some skirting boards. The owner was dissatisfied with the work, contended it had not been done in a proper and workman-like fashion, and commenced proceedings in the Consumer and Commercial Division of this Tribunal.
On 10 February 2014, by consent, the Tribunal ordered the tiler to pay the owner $200 in compensation and to carry out works to clean, grout and polish the tiles and to apply the seal on the skirting boards. Work was done pursuant to those orders, but not to the satisfaction of the owner.
On 3 October, 2014, an application to renew the proceedings was made by the owner to the Tribunal. In this application, based upon the concession by the tiler that certain work had still not been done in a proper and workman-like manner, and based on the tiler's offer to rectify the work, the Tribunal made orders requiring the tiler to remove the grout, to re-grout, to clean and polish all the tiles and to apply two seals on the skirting boards. Again, work was done pursuant to those orders but not to the satisfaction of the owner. Finally, in February 2015 a second application for renewal of the proceedings was made to the Tribunal with the owner asserting that certain work had still not been done in a proper and workman-like fashion: see Civil and Administrative Tribunal Act 2013 (the Act') Schedule 4, Part 4 Clause 8.
On this occasion, with the exception of a further payment of $270 in compensation ordered to be paid by the tiler to the owner, which sum was agreed to by the tiler, the owner was unsuccessful. The Tribunal file discloses that when making directions prior to the hearing, the Tribunal had indicated to the parties that that independent evidence should be provided. Directions were made for the filing and service of documents, including for the provision of expert reports. Given that this was a second renewal application and given that the degree of compliance with previous Tribunal orders was clearly in dispute, it was not unreasonable for the Tribunal to require the parties to provide independent expert evidence to support their respective cases.
NCAT Procedural Direction 3 concerning Expert Witnesses applies to such expert reports. This direction requires that an expert witness's report must contain 'an acknowledgement that the expert has read the experts' code of conduct and agrees to be bound by it.' That is an evidently important requirement. In this instance, it was not complied with. In the reasons for the decision, the Tribunal therefore declined to place weight on the applicant's (and indeed the respondent's) experts' reports. The Tribunal found that the applicant had failed to discharge her onus of proof and therefore dismissed the renewal application. It is from those orders that the present application to the Appeal Panel is brought.
[3]
Consideration of the application for leave to appeal
An unsuccessful party has no right to re-litigate its claim before the Appeal Panel. The right of appeal is limited to questions of law. Leave to appeal may be given in respect of decisions made in the Consumer and Commercial Division, as here, but only if the Appeal Panel is satisfied the appellant may have suffered a "substantial miscarriage of justice" on the grounds identified in cl 12(1)(a), (b) or (c) of Schedule 4.
The Notice of Appeal fails to indicate any error of law, and indeed there was no suggestion at the hearing that there was any such error. Rather, this was an application for leave. The Tribunal explained to the owner, as indeed is printed on the Notice of Appeal itself, that leave in these circumstances can only be granted where there is a substantial miscarriage of justice because the decision below was either not fair or equitable, was against the weight of evidence, or there was new evidence, that is, evidence that is now available that was not reasonably available at the time of the hearing.
As noted in Collins v Urban [2014] NSWCATAP 17 at [81], even if one or more of these grounds is established, the Appeal Panel still has discretion as to whether it will grant leave.
In that decision, an Appeal Panel which included the President, stated as follows at [84]:
84 The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) 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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
Applying these principles, we find none of the grounds identified in grounds identified in cl 12(1)(a), (b) or (c) of Schedule 4 to be established. Even if we are wrong in reaching that conclusion, we would not grant leave.
First, the owner sought to tender as "new evidence" some photos which had been taken since the hearing in February 2015, however she conceded at the hearing that there was nothing in those photos which could not have been provided at the February hearing. Indeed, photos were provided at that hearing. It follows that there was no "new evidence".
Next, the decision was not against the weight of evidence. It was open to the Tribunal to proceed in the manner it did by indicating that it did not accept any "expert evidence" provided, because neither expert had complied with the expert's code of conduct as set out above. The process of reasoning leading to that finding was orthodox and unremarkable. The owner was invoking Schedule 4, Part 4, Clause 8 of the Act which states:
If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
The owner bore the onus of proof in obtaining leave and then obtaining the relief sought. As Beech-Jones J said in Neville v Lam (No 3) [2014] NSWSC 607, in terms equally applicable and equally dispositive here:
[99]…in some circumstances a Court may find itself unable to choose between competing versions. In such a case, the party upon whom the burden of proof lies will have failed to discharge it (Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 at [25] per Heydon JA; Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 to 956 per Lord Brandon).
Finally, it cannot be said the decision was not fair and equitable. The reasons demonstrate the contrary.
It was clear at the hearing before us that the owner simply wished to rerun the February 2015 hearing with a view to achieving a better result than she had obtained at that hearing.
The appropriate orders therefore are for leave to appeal to be refused and for the appeal to be dismissed. We make orders accordingly.
[4]
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: 02 October 2015