Scone Diesel Pty Ltd v Hall

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the NCAT Act.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law had been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins, at [84], the Appeal Panel stated 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. either with or without further evidence, in accordance with the directions of the Appeal Panel.
7. When parties to an appeal do not have legal representation, the which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".
8. In the NCAT Act, s 41(1) gives the Tribunal the power to extend the time for lodgement of a Notice of Appeal and s 41(2) permits that power to be exercised even if the relevant time has expired.
9. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents.
10. (4) If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.

Documents

1. Documents lodged by the parties in respect of this appeal were the Notice of Appeal, and accompanying documents, received at the Tribunal's Newcastle registry on 10 May 2023. A Reply to Appeal was lodged on 22 May 2023.
2. Submissions were subsequently received from the appellant on 29 June 2023 and from the respondent on 5 July 2023. A USB drive containing a recording of the first instance hearing, which had a duration of just over one hour, was also provided.
3. The appellant's documents included: (1) a chronology followed by a response to the report provided by the respondent's expert, (2) a copy of the appellant's 4 May 2022 reply to the respondent's 16 March 2022 letter, and (3) a written submission which extracted portions of what was said during the hearing.
4. The respondent's documents included: (1) a copy of the documents submitted to the first instance hearing by the appellant, (2) a copy of the documents submitted to the first instance hearing by the respondent, and (3) a written submission in response to that of the appellant.

Time to appeal

1. Orders were made on 6 April 2023. As the Notice of Appeal was received on 10 May 2023, the Notice of Appeal was not lodged within the 28-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) which required the Notice of Appeal to be lodged by 4 May 2023.

Grounds of Appeal

1. In the Notice of Appeal, the grounds of appeal were expressed as follows: I believe that in the members considerations and findings for points 18, 19, 20, 21, 24 and 28 (please see attached) I believe the member misinterpreted the representation presented during the hearing. Please take note that the consumer was fully aware of the parts being used as per point 24 of consideration and findings (pages 5, 6, 7) which are attached.
2. As to what orders the landlord contended should now be made, it was suggested that the application should be dismissed. There was no application for leave to appeal. Hearing
3. Having identified the relevant documents, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak un support of their case and to respond to the case of the other party.
4. Appellant's submissions
5. The appellant's case was said to be that the presiding member at first instance misinterpreted the manufacturer's instructions in that the booklet said there was no warranty unless the parts were replaced. It was said that the appellant was not able to replace the parts because of the respondent's budget and instruction to re-use the parts which meant the appellant did not have the respondent's permission to replace those parts. Reference was made to an amount said to remain unpaid. It was also said that the vehicle, when taken by the respondent, had no oil leak, that he never brought the vehicle back, that it ran for "12 to 18 months", and that the appellant had not been given an opportunity to inspect the vehicle after the problem upon which these proceedings were based arose.
6. Respondent's submissions
7. Reference was first made to the Notice of Appeal being lodged late and to late compliance with the directions of the Tribunal in relation to this appeal. It was noted that the appellant had not paid the amount it was ordered to pay. The respondent's case was that the appellant had two options, namely to either replace or service the parts, and that they were not serviced in accordance with what was set out in the warranty booklet. It was also contended that the appellant had an opportunity to have a report prepared in relation to the vehicle but had not done so.
8. Submissions in reply
9. As to the late lodgement of the Notice of Appeal, it was said that it was sent, to the Tribunal and the respondent, by registered mail within time with the result that any delay was due to the time taken for delivery by Australia Post. After referring to matters which were evidence relating to the conduct of the appellant's business and cannot now be considered in this appeal. It was contended that the appellant could not follow the handbook due to the instructions of the respondent to re-se the parts ad that the vehicle was used for 12 to 18 months before the subject issues arose.
10. Consideration
11. It is important to first note two matters that were brought to the attention of the parties at the commencement of the hearing. First, that an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing".
12. Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law.
13. It is first necessary to consider whether to grant an extension of time for lodging the Notice of Appeal. As that notice was lodged only six days after the date by which it was required to be filed, and there is no prejudice to the respondent from extending time, we consider the preferable course is to consider this appeal on its merits and not to finalise it on what might be called a time technicality. While late compliance with directions in relation to this appeal was raised, there does not appear to have been any resulting prejudice to the respondent.
14. The effect of s 28 of the Fair Trading Act 1987 (NSW) is that the provisions of the Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth), became part of the law of New South Wales and applied to the application which gives rise to this appeal.
15. This case arose from work done by the appellant on the respondent's motor vehicle. The respondent provided the appellant with a warranty booklet which, in relation to the "injection pump, injectors and turbo charger" noted: A copy of the invoice for the overhaul of the injection pump and injectors by a registered diesel fuel injection shop must be returned with the warranty acceptance to validate the warranty. If not received warranty is null & void.
16. It is important to note that there are two options: (1) replace the parts, or (2) have them serviced by a "registered diesel fuel injection shop".
17. During the first instance hearing, the appellant said those parts had been serviced but also conceded there was no compliance with that provision in the warranty booklet. An inspection report from the engine supplier and a report from an independent expert provided support for a finding that those components caused the problem that arose.
18. Hence, the outcome appears to have arisen because the appellant serviced those parts 'in house' and did have them serviced in accordance with what appeared in the warranty booklet. To avoid any claim for not having serviced externally, in accordance with the warranty booklet, the appellant should have either obtained written instructions from the respondent or at least made a notice of a specific instruction not only to not replace the parts but also to not have them serviced externally.
19. It appears, from the evidence, the relevant dates are that the appellant's work was completed and the vehicle returned to the respondent in December 2021, an oil leak was observed in January 2022 and, due to the respondent sustaining a back injury, the vehicle was not delivered to a repairer until June 2022 after which the supplier's inspection report was dated 11 January 2023 and the report from the respondent's expert was dated 8 February 2023.
20. As a result, the evidence was that the problem arose within two months and not after the vehicle had been used for 12 to 18 months.
21. The appellant was found to have breached the guarantee, provided by s 60 of the ACL which is quoted below:
22. If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
23. We note that any desire of the appellant to inspect the engine after the problems arose could and should have been made at either the initial (directions) hearing or even at the outset of the final hearing and it is not a matter that can now influence the outcome of this appeal.
24. Considering each of the matters listed in Prendergast, there has been no suggestion that the first instance decision involved a failure to provide proper reasons. Nor has it been suggested that the wrong issue was identified or that a wrong principle of law was applied. Listening to the recording of the hearing does not suggest there was any failure to afford procedural fairness.
25. Perusing the reasons provided does not suggest there was either a failure to consider relevant matters or that irrelevant matters were considered. There was evidence to support the findings of fact upon which the decision was based, and the decision cannot be said to be unreasonable, and was certainly not a decision that no reasonable decision-maker would make.
26. Applying what was said in Cominos, we have considered whether there is any error on a question of law which the appellant has failed to identify but have not been able to discern any such question.
27. It is noted that the respondent obtained a certified copy of the money order on 26 April 2023, that an application for a stay of that order was dismissed on 24 May 2023, and that we have been informed that the appellant has not paid the respondent the amount of that money order. Dismissing this appeal serves to confirm the money order which the respondent is entitled to enforce.
28. However, as we noted during the hearing of the appeal, the appellant could still bring a claim for that amount with the result that there may be a saving in time and money for both parties if the respondent only seeks to enforce the net amount.
29. Orders
30. As we are not satisfied the decision involved any error on a question of law, the appeal must be dismissed. For the sake of completeness, we note that there was no application for leave to appeal. Accordingly, for the reasons set out above, the orders that will be made are as follows: 1. The time for lodging the Notice of Appeal is extended to 10 May 2023. 2. 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: 18 July 2023