Ripamonti v Be Asbestos Pty Ltd t/as BreathEasy Asbestos Removal

The Decision

1. After a hearing on 8 October 2021, the Tribunal gave oral reasons for decision at the conclusion of the hearing as follows: Mr Ripamonti has the onus to prove on the balance of probabilities that there was damage to the a/c to the value that he claims and that the respondent was responsible for that damage due to excessive dust in the ducts. I find there was a contract between the parties dated 14 April 2021, the scope of that contract was the strip out of the main bathroom and toilet at the applicant's premises [address redacted] including removal of fibre asbestos. I find that the work was completed on that date on 14 April 2021. I also find that the a/c had not been serviced for some time for a least a period of at least 3 years while the applicant owned the house. I note the evidence that there was no asbestos in the dust that was found in the a/c. It might be accepted that if significant dust in the a/c came from the demolition of the bathroom, that there would be at least some asbestos found in the a/c but there was not. There has been some dispute about whether the a/c was run during the day or not. Although the applicant has claimed a correlation between the air conditioning and usage, I'm not satisfied the evidence supports that. However, even if the air conditioning was run during the day and had been turned on by respondent, I'm not satisfied on the balance of probabilities that the respondent caused a significant amount of dust to accrue in the air conditioning and thus causing the damage. Therefore, I have decided to dismiss the applicant's claim

Notice of Appeal

1. Mr Ripamonti states two grounds of appeal in his Notice of Appeal being: 1) The Tribunal put weight on an assumption that if dust from the demolition had gone into the a/c system then the test results would have detected asbestos, but there is no proof that any of the materials removed during the demolition did in fact contain asbestos. We do however have proof that Synthetic Mineral Fibres were detected, and that dust from the bathroom demolition was found outside the bathroom. I have never claimed that the dust in the a/c was asbestos, only that it had come from the bathroom demolition. 2) The Tribunal did not believe there was any proof that the a/c filter had ever been cleaned, but this can be seen by the way my wife describes in detail how to remove the filter in the video recording.
2. He seeks leave to appeal on the basis that the Decision was against the weight of the evidence, and that the Tribunal should have given more weight to the following three items of evidence he provided to the Tribunal.
3. The first item of evidence was dust testing results undertaken at Hazmat Labs. Mr Ripamonti says that the results show that synthetic mineral fibres were detected and were not present in the filter due to everyday use, but rather from the materials being demolished in the bathroom. He says that the fact that asbestos itself was not detected in the testing results does not rule out that the dust came from the demolition. Mr Ripamonti notes that the Tribunal put weight on an assumption that if dust from the demolition had gone into the air conditioning system then the test results would have detected asbestos. Mr Ripamonti says that the evidence shows that there was a large amount of dust outside the bathroom after the demolition.
4. The second item of evidence was a video recording of Mr Ripamonti's wife. He says that she can be heard clearly describing in detail how to remove the filter to one of the workers, and that the information and detail his wife provides shows that she has previously removed the filter for the purpose of cleaning it. Mr Ripamonti says that he has two small children who have dust allergies and one has asthma. Therefore, he and his wife regularly clean the house in such a way as to remove as much dust as possible and this includes the filter on the air conditioning system. They moved into the house in July 2019 and last cleaned the air conditioning filter at the end of February 2021.
5. The third item of evidence were audio recordings (together with meter readings) which Mr Ripamonti says which support a finding that the air conditioning system was operating on the day in question.

Reply to Appeal

1. BEAR "strongly supports" the Tribunal's decision. It submits that Mr Ripamonti "failed to prove we caused any damage whatsoever to the air conditioner which was old, and had not been serviced". BEAR says that: 1) [Mr Ripamonti] is claiming that synthetic mineral fibres were detected which could be almost anything; ie insulation and wool is a type of synthetic mineral fibre. This appeal is a complete waste of the courts time and resources Member K George stated that the Tribunal was not satisfied that the grounds required to make the orders sought have been established. 2) [Mr Ripamonti's] wife detailing how to remove a filter in no way proves we had caused damaged to it or proves that they had cleaned it prior to our arrival. Her or anyones [sic - anyone's] knowledge on removing a filter does not mean anything in this case and does not prove that it was serviced.

Mr Ripamonti's materials

1. Mr Ripamonti provided to the Appeal Panel lengthy written submissions (including a very detailed time line of events) setting out why the Tribunal should have given more weight to the items of evidence set out above; invoices of BEAR; an excerpt from the National Occupational Health and Safety Commission National Standard for Synthetic Fibres and National Code of Practice for the Safe Use of Synthetic Mineral Fibres dated May 1990; the evidence before the Tribunal, and a sound recording of the Tribunal hearing and oral reasons for decision.
2. Mr Ripamonti also filed brief submissions in reply to BEAR's materials. In those submissions he states that: Having the air condition system serviced is not the same as the owner regularly cleaning the filters themselves. We regularly clean the filters and the evidence to back this up is shown by my wife describing the filter removal process to Phillipe Deschanel in recording Item 3. As the air conditioning system was in working condition and we regularly cleaned the filter, the age of the system is not important. Just because the system is not brand new does not give BE ASBESTOS the right to come into my home and render it unsafe for use. As stated, I am not claiming costs for a whole brand new system, rather I am only claiming the bare minimum of costs to get the system back in working condition.

BEAR's materials

1. BEAR's materials included written submissions. Its director Mr Obeid denies that the air conditioning system was operating on the day in question, and that that practice was against BEAR's policies and procedures. Mr Obeid says that the build-up of dust in the air conditioning filter could not have been accumulated in one day of work He disputes the claim that the meter readings support the view that the air conditioning was running on 14 April 2021 as power tools such as jack hammers and vacuum cleaners were also being used. He says BEAR follows Workcover guidelines and regulations and that as a licensed asbestos removalist of 9 years no complaint has ever been made against him or BEAR.
2. Mr Obeid submits that the appeal is a waste of time, and that the main factors Mr Ripamonti has failed to prove included the last service of the air conditioning system, the age of the air conditioning system and the state of the air conditioning system prior to BEAR's arrival on site.

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 an error of law giving rise to an appeal as of right. These include (but are not limited to) whether there has been a failure by the Tribunal to provide proper (that is adequate) reasons.
2. In Prendergast the Appeal Panel also 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).
3. We considered whether the Tribunal provided adequate reasons for its decision. There was a lengthy discussion about this issue by the Appeal Panel in Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 at [18] and following, in particular referring to the Court of Appeal Decision of NSW Land and Housing Corporation v Orr [2019] NSWCA 231 which identified the applicable principles at [66]-[77]. These included: 1. in the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255; Orr at [66]; 2. as to the quantity (or detail) of reasons, necessary for those reasons to be adequate, this may vary both with the nature of the decision maker, that is, whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56]; Orr at [68]; 3. as to the quality of the reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court; Orr at [70].
4. On balance, we consider that the oral reasons, while short, do reach the minimal acceptable standard, as they adequately identify the central issue which the Tribunal had to determine, namely whether Mr Ripamonti was entitled to compensation for what he described as "repairs" to the air conditioning system.
5. The being no error of law, Mr Ripamonti requires the leave of the Appeal Panel to bring the appeal.

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].

Mr Ripamonti's submissions

1. The primary evidence relied on by Mr Ripamonti at the Tribunal hearing was a report of Atlas Air Pty Ltd (Atlas). The accompanying invoice dated 21 April 2021 states that it came to the premises and inspected and checked the air conditioning system for "dust and damages or blockages to the coil". The accompanying (undated) "Mechanical Report" states: Attended site to inspect air conditioning system for issues relating to air conditioning system being run whilst building works had been carried out. The findings from the inspection are as follows large dust build up in the flexible ducting throughout. The indoor refrigeration coil has dust build up and fan blade. Rectification to dust issues would be as follows replace duct work with new and take away old throughout the hole system including ceiling mounted grilles. The refrigeration coil will need to be acid washed and same for the fan blades to remove all dust from affecting the air flow stream and refrigeration cycle. New return air filter will be required with the works. Due the dust in the duct work the system wasn't run on the day of inspecting. Total cost for these works will be $3200 Including GST
2. We observed to Mr Ripamonti during the appeal hearing that there was nothing in this report which suggested any liability on the part of BEAR. He told us that it was not part of Atlas' responsibility to determine BEAR's liability.

Respondent's Submissions

1. BEAR's position is straightforward and is set out in its Reply which we have summarised above. It says the Tribunal correctly dismissed Mr Ripamonti's application.

Consideration

1. We accept Mr Ripamonti's submission that the Tribunal erred by assuming that if dust from the demolition had gone into the air conditioning system then the test results would have detected asbestos. This was an incorrect submission as, as Mr Ripamonti correctly states, the testing results showed that there was no asbestos present.
2. However, we see a more basic difficulty with Mr Ripamonti's claim. Mr Ripamonti claimed in his application that his air conditioning unit needs to be repaired because of damage caused to it by BEAR; in his Reply submissions he stated that BEAR had rendered it unsafe for use, and he was claiming the costs of getting the system "back in working condition".
3. However, the only "damage" we can identify is dust which Mr Ripamonti says was in the air conditioning system by reason of BEAR operating the air conditioning system while it was undertaking the demolition work. We will assume in favour of Mr Ripamonti that the air conditioning system was operating on the day in question, and that that there was dust in the ducts. But there is no evidence, other than Mr Ripamonti's say so, which suggests that this was due to the actions of BEAR. And there is no evidence which suggests that the air conditioning system was damaged in any way requiring repairs or had been rendered unsafe due to BEAR's actions.
4. Mr Ripamonti's says that the Tribunal failed to give sufficient weight to the three items of evidence we have identified above at [14], [15] and 16].
5. The first item was the dust testing results of Hazmat Labs dated 15 April 2021. Mr Ripamonti says these results show that synthetic mineral fibres were detected which were not present in the filter due to everyday use, but rather from the materials being demolished in the bathroom. We accept that these results show that some synthetic mineral fibres were detected in the air conditioning filter, but there is no evidence (and this report does not support) Mr Ripamonti's hypothesis that this was arose from "materials being demolished in the bathroom".
6. In our view, these results are irrelevant to the question of whether or not there was excessive dust in the air conditioning system due to the actions of BEAR. We accept that there was dust present in at least one filter after BEAR's work (photo 1, p 18 of Mr Ripamonti's materials), but there was no "before" photograph showing the dust was not there before BEAR commenced its work.
7. The second item of evidence was a video recording of Mr Ripamonti's wife. We accept that she knows how to clean the filter. But this of itself is insufficient evidence to establish that there was excessive dust in the air conditioning system caused by BEAR's actions.
8. The final item of evidence on which Mr Ripamonti relies are the audio recordings (together with meter readings) which Mr Ripamonti says which support a finding that the air conditioning system was operating on the day in question. We accept that this is the case.

Conclusion

1. As we noted above, the primary evidence relied on by Mr Ripamonti was the "mechanical report" of Atlas. We put aside the issue that the report was undated and unsigned and falls far short of the minimum requirements of being expert evidence. But the report does not suggest any liability on the part of BEAR. Nor does the other evidence relied on by Mr Ripamonti, when considered alone or cumulatively, establish that any fault of BEAR rendering the air conditioning system unsafe or in need of repairs.
2. As the Appeal Panel has remarked on many occasions: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ... See Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172 at [40]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]; Mason v Hyland [2018] NSWCATAP 203 at [23]
3. We are not satisfied, even after taking into account and reconsidering all the evidence relied on by Mr Ripamonti, that he has established his claim that the air conditioning system had been rendered unsafe and/or needed to be repaired.
4. Accordingly, to the extent that the appeal raises errors other than errors of law, we do not consider that a grant of leave is warranted as 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. Leave to appeal refused. 2. Appeal otherwise dismissed.

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: 03 February 2022