Robertson v Kenport Petroleum Pty Ltd

The decision under appeal

1. After reviewing the evidence which had been provided for the purpose of the proceedings, the Member said Having carefully considered all of the evidence, the Tribunal is not satisfied on the balance of probabilities that the sand and metal filings that contaminated Mr Robertson's motor vehicle came from diesel fuel supplied by the Respondent. The Tribunal is not satisfied on the balance of probabilities that the diesel fuel supplied by the Respondent to the Applicant was not of acceptable quality or not fit for purpose.

The grounds of appeal

1. The appellant put forward two primary grounds of appeal. The first was that the Respondent had been allowed to rely on evidentiary material which had not been filed within the time limitation period fixed by the Tribunal. This is not a matter which was adverted to by the Member in her reasons for decision. We are unsure whether it was raised during the course of the hearing before her. In any event, there is no suggestion that in some way the appellant was prejudiced in participating in the hearing because the respondent's material had been provided out of time. In the absence of any evidence of any prejudice, and because we have determined to dismiss the appeal on its overall merits, we reject this first ground.
2. The second ground is, in essence, that the decision was contrary to the evidence and the weight of the evidence.

Consideration

1. We now come to consider whether the decision was contrary to the evidence and the weight of the evidence.
2. To succeed on this ground the appellant must establish that the only conclusion which the Member could have reasonably reached based on the evidence before her was that the damage sustained to the respondent's vehicle was caused by the delivery of fuel to it from the respondent's pump, which fuel was contaminated by sand grains and metal shavings. (See Calin v The Greater Union Organisation Pty Limited [1991] HCA 23 per Mason CJ, Deane, Toohey and McHugh JJ at [19]).
3. There is no direct evidence that the diesel fuel which the appellant purchased from the respondent on 8 October 2019 was contaminated in a manner which he alleges. Whether the appellant was able to prove that this occurred to the satisfaction of the Tribunal depended upon whether there was relevant circumstantial evidence that this is what occurred.
4. The principles concerning the use of circumstantial evidence are usefully summarised in Chamberlain v The Queen (No 2) [1984] HCA 7. In their joint judgement Gibbs CJ and Mason J (as his Honour then was) said: 16. It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR, at p 379 , that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt". (at p536)
5. It follows that in determining this principal issue the Member was required to consider all of the evidence which was relevant and then ascertain whether she was able to draw an inference from the circumstances which must raise a more probable inference in favour of what was alleged by the appellant.
6. Prima facie the position proposed by the appellant was an attractive one. He had only purchased fuel from the respondent, and his fuel tank remained locked at all times. The report of Ultra Diesel stated that the cause of the seized injector was fuel contaminated by sand grains and metal shavings. However, on the respondent's evidence sand grains and metal shavings could not have been dispensed through its diesel pumps. Furthermore, it was said that the filtration system in the respondent's vehicle would also have precluded this from occurring. Unfortunately, there is no evidence about the amount of sand found and the size of the metal shavings, and therefore no expert evidence about the likelihood of the source of these contaminants. The task confronting the Member in these circumstances was to determine whether there was a more probable inference that the position contended for by the appellant should be preferred to that contended for by the respondent.
7. In determining whether this appeal succeeds we are required to assess whether the only conclusion which the Member could have reasonably reached based on the evidence before her was that the damage sustained to the appellant's vehicle was caused by the delivery of fuel to it from the respondent's pump, which fuel was contaminated by sand grains and metal shavings. In all the circumstances, having regard to the totality of the evidence we are unable to determine that the only conclusion which the Member could have reasonably reached was that contended for by the appellant. It was open in all the circumstances for the Member to have accepted the evidence given on behalf of the respondent and to have reached the conclusion that she was not satisfied that the position contended for by the appellant had been established on the balance of probabilities. In these circumstances it cannot be concluded that in rejecting the appellant's case the Member fell into error. It follows that the appellant's appeal must fail.

Order

1. Leave to appeal is refused and the appeal is 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: 21 April 2021