Saeedi v Fisher & Paykel Appliances Pty Ltd

Reasons for decision

1. The Tribunal concluded that there was "insufficient evidence" to establish Mr Saeedi's claims that the reported deposits of lint on his clothing were the result of a defect or fault in the machines (Reasons for Decision, 23 February 2016 (Reasons) p 3). In reaching that conclusion the Tribunal observed (at p 3): [T]he applicant bears the burden of proof. … The applicant has not provided any technical evidence to establish that any of the machines were faulty, in particular there is no evidence that the last machine was faulty. I accept the respondent's evidence that the inner bowl was replaced for the reason that this would be the only cause of lint build up if there was something wrong with the machine and by replacing it they could eliminate it was a technical defect. There is insufficient evidence which proves on the balance of probabilities that the lint build up is a result of a defect or fault in the respondent's machines and not for some other reason such as overloading or manner of usage.
2. The Tribunal went on to note (at p 3) that Mr Saeedi has "the additional evidentiary problem" in that he did not provide any receipts to support the claim of suffering damage in the sum of $5000. In addition, the Tribunal concluded (at p 3) that Mr Saeedi had not attempted to mitigate his loss "by having personal items dry cleaned or … professionally cleaned to remove the lint".

Grounds of appeal

1. In the Notice of Appeal Mr Saeedi relied on the following grounds of appeal: (i) the decision was against the weight of evidence, (ii) the decision was not fair and equitable, and (iii) significant new evidence has arisen. Expanding on these grounds, in submissions attached to the Notice, Mr Saeedi wrote: 1. The Tribunal Member demonstrated her "prejudice, race discrimination or bias against me" by not having regard to my account of the problems experienced with the washing machines. 2. The Tribunal Member was not qualified to decide my claim and acknowledged that the "technical issue was not easy to understand". 3. The Tribunal ignored my evidence.
2. The stated grounds of appeal relied upon by Mr Saeedi do not give rise to a question of law. Therefore he requires the leave of the Appeal Panel to appeal: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). As the decision, which is the subject of the appeal is a decision of the Consumer and Commercial Division of NCAT, leave can only be granted if the Appeal Panel finds that the decision under appeal was not fair and equitable, against the weight of evidence or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) and, as a consequence, Mr Saeedi may have suffered a substantial miscarriage of justice: s 80(2)(b) and cl 12 of Sch 4 to the NCAT Act.
3. The assertion that the Tribunal Member was biased raises a question of law, namely a failure to afford procedural fairness. Mr Saeedi does not require leave of the Appeal Panel to appeal on this ground: s 80(2)(b) the NCAT Act. While Mr Saeedi did not assert in the Notice of Appeal that this ground raised a question of law, in fairness to him as he was self-represented in the appeal, we proceed on the basis that it does. (See generally the role of the Appeal Panel where a self-represented appellant fails to articulate a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Khan v Kang [2014] NSWCATAP 48 at [15]; George Papazachariou v Michael Antoun [2015] NSWCATAP 157 at [23]).
4. Fisher & Paykel participated in the Appeal but did not file a Reply.

Ground 1: Against the weight of evidence

1. Mr Saeedi contends the ultimate decision made by the Tribunal was against the weight of evidence. Fisher & Paykel disagrees.
2. Central to the Tribunal's decision was whether, as Mr Saeedi asserts, there was a causal connection between the reported lint build-up on his clothes and a defect or fault in one or more of the subject machines.
3. Commenting on the meaning of the phrase "against the weight of evidence" in the context of cl 12(1)(b) of Sch 4 to the NCAT Act, the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 stated at [77]: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach (citations omitted).
4. Adopting that approach, the question we must decide is whether the evidence in its totality preponderates so strongly against the conclusion reached by the Tribunal - namely that there was insufficient evidence to establish a causal connection between Mr Saeedi's claimed loss and some defect or fault in the machines - that this conclusion was not one that a reasonable Tribunal member could reach.
5. While not expressly stated, it is apparent from its Reasons that the Tribunal accepted Mr Saeedi's claim that his clothes were covered in significant deposits of lint after being laundered in each the four subject machines. The Tribunal then went on to consider the evidence to support Mr Saeedi's causation hypothesis.
6. The only evidence adduced by Fisher & Paykel was the oral evidence given by Mr Deves. The Reasons recorded that Mr Deves testified that: 1. Apart from one prepared in May 2013, none of the reports prepared following inspection of the machines recorded a fault or defect being detected. The report of the inspection conducted in May 2013 recorded that the "controller mechanism" in the second replacement machine was replaced. 2. The Fisher & Paykel technician who inspected the fourth machine on 17 July 2015 told him he could not detect any fault in the machine. 3. In Mr Deves' opinion, if the problems reported by Mr Saeedi had been caused by a machine malfunction, the only possible cause could have been a faulty drum. He explained that, following the July 2015 inspection, Fisher & Paykel decided to replace the drum of the fourth machine to eliminate that possibility. 4. In September 2015, Mr Deves inspected the fourth machine after Mr Saeedi complained that the lint problem continued after the drum had been replaced. Mr Deves claimed he could not find any defect or fault in the machine. 5. In Mr Deves' opinion the most likely cause of Mr Saeedi's reported problems was "user problem", specifically overloading the machine. He explained that each of the subject machines had a maximum load capacity of five kilograms. According to Mr Deves, if a machine is overloaded there is "insufficient room for the lint to float and to be washed out". Mr Saeedi denied overloading the machines. (See Reasons at p 2)
7. The Reasons record that in relation to the alleged causal link, the evidence adduced by Mr Saeedi was: 1. His claim made in oral evidence that after being laundered in each of the subject machines his clothes and bedding were left with significant lint deposits. 2. In relation to the fourth machine, numerous photographs revealing lint deposits on his bedding and clothing. 3. His claim made in oral evidence of being told by "one of the technicians" that the "holes in the inner bowl [of the inspected machine] had not been made correctly and this was causing the lint build up".
8. In addition, in support of his hypothesis of a causal link between the lint deposits and some malfunction in the machines, Mr Saeedi pointed to the decisions made by Harvey Norman and Fisher & Paykel to replace and ultimately refund the purchase price of the machines. He asserted that these decisions constituted an admission of liability.
9. It is implicit from its Reasons that the Tribunal was not satisfied to the requisite standard that the comment attributed to the technician by Mr Saeedi was made. Mr Saeedi's account of that conversation was unsupported and was inconsistent with Mr Deves' hearsay account of his conversation with the technician. That finding was open to the Tribunal on the available material and could not be said to be against the weight of evidence.
10. Having rejected Mr Saeedi's claim about the alleged comment made by the technician, the Tribunal was left with no direct evidence to support Mr Saeedi's hypothesis of a link between the lint deposits left on his clothing and a defect or fault in the subject machines. This was not fatal to Mr Saeedi's claim because as, Spigelman CJ explained in Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29 (Seltsam) at [91]: Causation, like any other fact can be established by a process of inference which combines primary facts like "strands in a cable" rather than "links in a chain", to use Wigmore's simile. (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579).
11. Accordingly, the Tribunal was required to consider all of the available material and evaluate whether it was sufficient to justify an inference being drawn of a probable connection between the lint deposits and a machine malfunction. As the authorities have repeatedly emphasised, permissible inference must be distinguished from conjecture or speculation; it is not enough that the inference drawn is one of possibility: Seltsam at [83]-[88]; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 169-170.
12. Before the Tribunal were reports of the inspections conducted in July 2015 and September 2015, together with Mr Deves' opinion that the lint deposited on Mr Saeedi's clothing were not attributable to any fault or defect in the fourth machine. Given that its answer to Mr Saeedi's claim rested largely on Mr Deves' evidence and opinion, it is somewhat surprising that Fisher & Paykel appointed him to represent it in the proceedings before the Tribunal (and the Appeal). Equally, it is surprising that Fisher & Paykel neither filed a Reply to the Notice of Appeal nor provided the Tribunal with copies of the inspection reports referred to by Mr Deves in his oral evidence. In the appeal, we refused Mr Deves' application to tender those reports.
13. While it is possible that the reason Fisher & Paykel and Harvey Norman decided to refund the purchase price of the machines was because each implicitly acknowledged there was a defect or malfunction in the machines, their respective decisions could not be taken to be an admission of liability. A retailer or manufacturer may decide to refund the purchase price of a good claimed by a consumer to be defective for any number of reasons, including commercial pragmatism.
14. Each party provided the Tribunal with limited evidence about the issue of causation. While the evidence provided by Fisher & Paykel suffered from the shortcomings referred to above, nonetheless it provided a plausible alternative explanation for the reported lint deposits left on Mr Saeedi's clothes. As the Tribunal correctly pointed out, Mr Saeedi bore the evidentiary onus of establishing the claimed causal link. Given that there was no direct or independent evidence to support his hypothesis, and a plausible alternative explanation for the link deposits had been provided, the Tribunal's ultimate finding was, if anything, unremarkable. As stated above, while the absence of any direct evidence was not fatal to Mr Saeedi's claim, nonetheless the Tribunal was required to be satisfied that the inference could be drawn that the alleged causal connection was probable not merely possible.
15. In our opinion, the evidence in its totality could not be said to preponderate so strongly against the conclusion reached by the Tribunal in relation to causation, that that conclusion was not one a reasonable Tribunal member could reach.
16. Given its conclusion about causation, strictly speaking the Tribunal was not required to consider whether, as alleged, Mr Saeedi had suffered loss or damage in the sum of $5000. Nonetheless, the Tribunal proceeded to consider this issue, noting in its Reasons (at p 3) that Mr Saeedi had "the additional evidentiary problem" in that "no receipts have been provided to support the value of the claim for $5000". As he acknowledged in this appeal, Mr Saeedi did not provide the Tribunal with any receipts to support his claim of having spent $5000 to replace damaged clothing and bedding. Nor did he provide any medical evidence to support his claim of suffering skin problems as a result of exposure to lint deposits and, in turn, incurring significant treatment costs.
17. Given this dearth of evidence, in our view it cannot reasonably be suggested that the conclusion reached by the Tribunal on the issue of the quantum of damage, was against the weight of evidence.

Summary

1. Mr Saeedi may be sincere in his belief that the lint deposits were caused by some defect or fault in the machines. However, neither the finding made by the Tribunal that there was insufficient evidence to support that belief nor the ultimate decision made, could be said to be against the weight of evidence.
2. As we are not satisfied that the decision was against the weight of evidence, it is not open to us to grant leave to appeal on this ground.

Ground 2: decision was not fair and equitable

1. There is significant overlap between this ground of appeal and Ground 1. In addition to those submissions which have been addressed above, in support of this ground Mr Saeedi: (i) asserts that the Tribunal was "unqualified", and (ii) claims that the Tribunal failed to take account of his evidence of damage to his clothing and bedding.

The Tribunal was "unqualified"

1. Mr Saeedi contends that the Tribunal was unqualified, confused and lacked the necessary technical expertise to determine his application.
2. He asserted that had the Member held technical qualifications equivalent to those held by Mr Deves it would have been apparent that each of the subject machines were faulty and that the Fisher & Paykel representatives were "cunning people".
3. This submission misapprehends the role of the Tribunal. The Tribunal's role is not to resolve disputed factual matters by applying its own specialist knowledge, skill and/or experience but rather to consider, weigh and assess the evidence provided by the parties.

The Tribunal failed to have regard to Mr Saeedi's evidence

1. In submissions in support of the appeal, Mr Saeedi wrote that the Tribunal Member "didn't take into account all of the documents and pictures I submitted". We understand Mr Saeedi to be referring to the numerous photographs he tendered in the proceedings before the Tribunal revealing lint deposits on his clothes and bedding.
2. The factual basis for this assertion is not established. As noted at [18] above, the Tribunal accepted Mr Saeedi's claim that, as apparently revealed by the photographs, significant lint deposits were left on his clothes after being washed in the fourth machine. While accepted, that evidence was largely irrelevant to the Tribunal's finding about causation, which was central to its decision.

Conclusion

1. As we are not satisfied that the decision was not fair and equitable for the reasons advanced by Mr Saeedi, it is not open to us to grant leave to appeal on this ground.

Ground 3: availability of significant new evidence

1. Mr Saeedi seeks leave to appeal on the ground that significant new evidence has arisen. That evidence consists of receipts for clothing purchased in the latter half of 2015, totalling a couple of hundred dollars.
2. To amount to "significant new evidence" within the meaning of cl 12(1)(c) of Schedule 4 to the NCAT Act, an appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. [emphasis added] (See Owners SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [109].)
3. There is no material to suggest, and nor is it claimed, that the receipts on which Mr Saeedi now relies were not reasonably available at the time of the hearing held to determine his claim. More to the point, that evidence could not be described as "significant" because it is irrelevant to the threshold issue of causation.

Ground 4: failure to afford procedural fairness

1. The Tribunal was obliged to afford each party procedural fairness: s 38(2) of the NCAT Act and Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142 at [15]. As part of that obligation, the Tribunal was required to determine Mr Saeedi's application without bias or the appearance of bias.
2. Mr Saeedi asserts that that the Tribunal "demonstrated her prejudice against me". In written submissions he wrote that the alleged prejudice could be "race discrimination or bias towards me to take a side of Fisher & Paykel". In oral submissions he also suggested that the Member may have been motivated by "personal hate".
3. Mr Saeedi alleges actual bias. The onus of demonstrating actual bias lies with Mr Saeedi as the party asserting bias and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520. An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required to support a finding of actual bias; that finding should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
4. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J wrote at [183]: "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].
5. Mr Saeedi was unable to point to any material to suggest that he was treated unfairly in any procedural or substantive way or that the Member was motivated by bias, malice or some other legally disabling factor. Nor was he able to point to any material to support his belief that for reasons of "bias" the Member determined his application other than on its merits. Mr Saeedi's submissions were to the effect that the only rational explanation for the ultimate decision reached was that the Member was ill-disposed towards him on account of a number of possible factors. Upon any fair assessment the assertion that the Member was biased against Mr Saeedi appears to be simply a way of conveying his disagreement with the outcome of his application.
6. Mr Saeedi's assertion that the Tribunal was biased lacks substance. This ground of appeal must be rejected.

Orders 1. Leave to appeal is refused. 2. 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: 01 November 2016