Sharpe v Ralph Mazza and Lisa Mazza trading as Penrith Engine Services

1. Internal appeals may be made to the Appeal Panel as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel on any other grounds: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").

1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] set out the following (non-exhaustive) examples of questions of law which would give rise to an appeal as of right:

(1) Whether there was 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 considerations (i.e., mandatory considerations which the decision maker was bound to take into account);

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact: (per _Australian Broadcasting Tribunal v Bon_d (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138);

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. It stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any procedural fairness considerations that might arise to the respondent) (Prendergast at [12]).

1. For appeal grounds which do not raise questions of law, leave to appeal is required. In appeals from a decision of the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides the following further limitation:

12 Limitations on internal appeals against Division decisions

(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because -

(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).

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. As to this discretion, in Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant authorities at [65]-[79] and concluded at [84](2) 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."

1. The primary decision was made on 1 November 2024 in the Consumer and Commercial Division.
2. The Tribunal correctly noted (D[10]-[14]) that s 79J of the Fair Trading Act 1987 (NSW) ("FTA") provided jurisdiction to the Tribunal to hear certain "consumer claims", and that the evidence in the case raised possible causes of action under the Australian Consumer Law 2010 (NSW) ("ACL"), which applied as law of NSW by reason of s 28 of the FTA. More specifically (at D[14]):

"... In particular, the claims raise possible breaches of the consumer guarantee provisions under ss 51-62 [of the ACL] and may also raise claims in contract in respect of a warranty provided" (at D[14]).

1. The Decision is a general decision, and an internally appealable decision under s 32 of the NCAT Act.
2. An internal appeal from a decision of this nature must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later): r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
3. The Notice of Appeal was filed within time, on 22 November 2024.

1. The Appellant was not legally represented, and the grounds of appeal were somewhat unclear (a matter expanded upon below). In summary, the following matters were raised in the Notice of Appeal ("NA") and/or submissions:

(1) procedural fairness was not afforded to the Appellant at the hearing - in respect of dealing with medical episodes suffered by Mr Organ (the Appellant's expert witness), interruptions by the Respondent that were not appropriately dealt with, and rudeness by the Member directed toward Mr Organ;

(2) the Decision was against the weight of evidence - that the expert evidence presented by Mr Organ should have been preferred and accepted;

(3) the Member was biased and had insufficient understanding and technical knowledge to determine the relevant facts;

(4) the Member "failed to address the legislative claims properly" and did not understand the relevant law ; and

(5) new evidence was now available, which would be produced to the Appeal Panel.

1. It is convenient to start with a consideration of the reasons for decision issued by the Tribunal.
2. The nature of the dispute was outlined at D[1]-[5], saying (inter alia):

"3. The applicant seeks compensation from the respondent, alleging that they are responsible for the [engine] failure, and should have honoured a warranty that was given for the reconditioning work. The applicant also claims that the respondent did not appropriately respond to issues with the engine when the vehicle was serviced on 24 October 2022, which contributed to or caused a subsequent major failure of the engine.

4. The applicant further claims that the respondent was responsible for damage to and missing parts from the engine of the vehicle while it was in the respondent's possession between when it failed and when the applicant collected the vehicle in March 2023. In particular, the transmission has not been secured correctly prior to pick up, and other parts were missing or needed to be replaced.

5. The respondent claims in response that the work commissioned on the exhaust system or Diesel Particulate Filter (DPF) of the vehicle by the applicant after the reconditioning work was done, which included modification of the Electronic Control Unit (ECU), breached their warranty conditions, and was the most likely cause of the engine failure."

1. The Tribunal at D[7], and noted that it heard the matter on two dates because:

"The first hearing was adjourned after a medical emergency involving a witness."

1. That witness was Mr Organ, the expert witness for the applicant.
2. The Tribunal referred at D[8] and [9] to its consideration of "all" the evidence and submissions presented, comprising:

(1) sworn evidence of Mr Sharpe and Mr Mazza;

(2) expert evidence of Mr Organ (for the Appellant) and Mr Alessi (for the Respondent), each comprising written and oral evidence given to the Tribunal;

(3) other documentary evidence; and

(4) eight separate written submissions by the parties.

1. At D[15] the Tribunal identified the issues as follows:

"I have primarily considered the following issues in determining this matter:

(1) What are the relevant background circumstances?

(2) What caused the premature engine failure in November 2022?

(3) Has the applicant established any consumer claims and is he entitled to a remedy?"

1. The Tribunal set out the "background circumstances" at D[17] according to the applicant (the Appellant in this appeal) including:

(1) The terms of the warranty at D[17(5)] which stated:

"WARRANTY 12 months or unlimited kms on engine only... Warranty shall not cover any claims for overheating due to blown heater or radiator hoses, accidents or negligence of driver. In the event of any signs of malfunction it is customer's responsibility to cease operation & to report the problem. Failure to comply with this condition may result in more serious consequential damage & void any warranty entitlements".

(2) The following evidence at D[17(6)-(7)] that, following the reconditioning of the engine, the following events (inter alia) occurred concerning the "DPF" (Diesel Particulate Filter) and "ECU" (Electronic Control Unit):

"(6) The applicant gave evidence that "soon after picking up the vehicle it was blowing black smoke" but "the vehicle was running ok."

(7) He took the vehicle to Tune Works at Raymond Terrace to check the DPF and that business undertook work on the vehicle. An invoice apparent dated 17 October 2022 issued by Tune Works includes "General Labour" 5 hours $650 and "ECU Edit" under 'parts' $550. It notes "Carry out exhaust solution and ecu edit. Road test. Tighten loose bracket on catalytic converter that was rattling" (E1, T4, p5). At the hearing, the applicant gave evidence that Tune Works removed the internal parts of the DPF, as an interim measure, because it was locked and which had the result that it lowered his fuel consumption. He conceded that this modification was illegal.

(8) After the work done by Tune Works, the engine "was still blowing black smoke and it was hard to start and it was still running after shutting down".

(9) He took the engine back to [the Respondent] for checking and a service, but "they did nothing"...

(10) Some time later, likely in November, the applicant rang the respondent to report a noise in the engine, and the respondent requested that the vehicle be towed to [PES] to be checked..."

1. The Respondent's contentions and evidence were then set out at D[18(1)-(9)] following which the Member set out its findings of fact.
2. Importantly, there was no challenge raised in this appeal by the Appellant to the following findings of the Tribunal at D[19(1)-(8)] regarding facts that were in dispute (our emphasis in italics):

"(1) The applicant sought reconditioning of his engine because he believed that compression was down on two cylinders and he told Mr Mazza this. The initial tests done by the applicant, prior to the work by the respondent, did not show a failed injector. The test results provided do not support this claim. Consequently, I do not accept Mr Sharpe's disputed claim that he raised a failed injector with Mr Mazza when engaging his services.

(2) As part of providing the reconditioning services, the respondent undertook external testing of all 5 injectors, showing one failure. The respondent replaced that injector that failed. This is supported by a receipt in their materials. The applicant queried the fact that the receipt was for a different price to what he was charged, but I do not consider that this significantly undermines the fact that testing was done. The invoices list the same services. The DFT [Department of Fair Trading] report notes one injector was different to the others I am also persuaded that the respondent offered to replace all the injectors but the applicant did not wish to do this. I note that the invoice shows that one new injector cost over $500, so five new injectors would have cost $2,500.

(3) The applicant did not raise any issues of black smoke, hard to start, or running over with the respondent at the time of the 1,000 km service or prior to the engine failure in November 2022. While the applicant's evidence was that the vehicle had been blowing black smoke since first collected it from the respondent [sic], he did not explicitly state in his statements or oral evidence that he had advised the respondent of this. When I put to him at the hearing that it seemed that he hadn't advised the respondent of issues with the engine, he did not deny this. I note that Mr Organ assumed that these issues were raised with the respondent. I have considered Mr Organ's evidence below.

(4) The vehicle had likely travelled at least 2,500 km between the engine reconditioning and the failure. While Mr Sharpe claimed that it has only undertaken about 1,000 km, the PES [Penrith Engine Services] invoices suggest that the vehicle had travelled 1,183km between delivery and the service (156729 to 157912), and the DFT report suggests that the odometer read 159315 after the failure (though there is a note that it was not sighted) which is a further 1,402 km.

(5) The work undertaken by Tune Works prior to the engine failure involved removing the interior of the DPF, disconnecting sensors, and editing or modifying the ECU. The work undertaken was an unlawful modification. That it was unlawful was conceded by Mr Sharpe. While Mr Organ for the applicant claimed at hearing that the work on the DPF did not involve an edit, more than stopping the regeneration process, the invoice issued by Tune Works identifies an edit was undertaken, and there is no primary evidence before the tribunal about the extent of the edit. The issue of the extent of any edit to the ECU is considered further below. As to the date this work was undertaken the invoice issued by the business is dated 17 October 2022, which was prior to the 1,000km service. The respondent raised doubts about whether this date was accurate, believing that if the work had been done they would have noticed it at the 1,000km service. If the DPF had been modified (with the interior removed), the vehicle would likely have been blowing black smoke at that time and it wasn't. On the basis of the evidence before me, I consider that it is more likely that not that the work was done prior to the service and on the date indicated. I note that the odometer reading on the invoice was 157221, which suggests that it was done before.

(6) Two injectors failed in testing done in February 2023. I accept that the injector test report from February 2023 was for Mr Sharpe's vehicle and that it reports that two injectors failed at that time. It seems that there was an error in entry of the registration number of the vehicle, with a client reference entered instead. I accept, however, the respondent's argument that this does not demonstrate that there were problems with the injectors at the time the reconditioning work was undertaken.

(7) The applicant has not established that any particular parts were missing from the engine when he collected it, or that the respondent damaged any parts for the engine while it was in his possession. The only evidence of this was the invoice for the work done by Tune Works in March 2023, and as noted elsewhere, there were two invoices with the same number listing different parts and costs. I am not satisfied on the basis of the evidence that parts were missing.

(8) The cause of any damage to the transmission more likely than not occurred as a result of the accident Mr Sharpe had after collecting the engine from the respondent. The applicant has not established that the respondent was at fault for any damage."

1. The Tribunal noted at D[20] that the particular issues of factual dispute in the parties' expert evidence were:

"(1) What was the cause of the premature failure of the engine?

(2) What relevance were the modifications made to the DPF in the intervening time?

(3) What, if any, steps should or could the respondent have taken to prevent the failure?"

1. The Tribunal raised no issue with Mr Organ's qualifications as an experienced automotive engineer.
2. Mr Organ's several reports were described by the Tribunal at D[22] as "lengthy, with multiple attachments and relatively unstructured. The facts on which Mr Organ's opinions are based, and the opinions he provides are somewhat difficult to discern". It is also notable that the Tribunal made reference to various different explanations that had been given by Mr Organ as the "root cause" of the failure.
3. Nonetheless, the Tribunal proceeded by setting out at D[22]-[28] a "broad summary" of the relevant facts, contentions and opinions of Mr Organ in respect of his presentation of evidence in:

(1) his First Report dated 17 March 2023 at D[22(1)-(10)], which included an observation by the Tribunal that it had found that the respondent was not told the vehicle had been blowing black smoke "from the day it was picked up", either when it happened or at the 1,000 km service (see D[22](2) and (3)) - a matter which underpinned his evidence as to what should have been done by the Respondent as a result of them being "put on notice";

(2) his letter/report dated 23 July 2023 (in reply to the evidence of Mr Alessi) at D[23(1)-(5)], a report the Tribunal described as:

"a further 27-page letter/report/submission ... Again, the relevant facts, contentions and opinions are difficult to discern";

(3) his oral evidence at D[24]-D[28] - set out below in full (our emphasis in italics), again alleging the respondent was on notice of issues:

24. In oral evidence, Mr Organ was keen to distance himself from and discredit the findings of the DFT inspection. The failure was not due to overheating, There were signs of overheating on only one piston. The failure was due to fuel.

25. In oral evidence, Mr Organ stated that the Engine Management System controls the supply of fuel to the engine. He suggested that a failure of the crank angle sensor was a case of the engine failure. The symptoms reported by the applicant were consistent with a faulty crank angle sensor. He believes that a faulty crank angle sensor was the cause of the issues. If the crank angle sensor is not functioning, the Engine Management System could not control the fuel injection. He claimed that a test of the pistons had showed flow-back leakage, but was unable to identify the evidence of such a test. Testing of two of the three injectors in February showed that two failed but did not appear to refer to leakage. (E1, T7)

26. Mr Organ gave the opinion that the respondent should have replaced all the injectors and that the complaints of the applicant should have alerted them to the problems. They should have thoroughly diagnosed the problems with the engine and done additional tests, including a 'major' test of the injectors (which included 40 tests). They should have done more than spray testing and should have done a cylinder balance check. This should have been done at the first service. If they had done that, there was some chance the failure could have been prevented. They should have carried out a data scan and other diagnostic procedures.

27. He was adamant that the DPF work was not associated with the failure. The DPF work would not cause the over-fuelling issue that was the cause of the engine failure.

28. He criticised the evidence of the respondent's expert as lacking a knowledgeable basis and for the fact that their expert had not examined the engine. He disputed any connection between the DPF work and the engine fuelling issue."

1. The Member then dealt with the expert evidence presented by the Respondent, referring to Mr Alessi as an "automotive vehicle mechanic and investigator" and raising no concerns about his status as an expert (at D[29]) despite having earlier recorded Mr Organ's concerns.
2. The Member summarised Mr Alessi's report dated 27 June 2023 at D[30(1)-11)], observing that it "clearly set out the facts and material on which is it [sic] based"; and then summarised his oral evidence at D[31(1)-(3)].
3. Relevantly, the Tribunal noted:

(1) that Mr Alessi agreed with Mr Organ that the engine failure was due to a fuel issue ("over-fuelling");

(2) that Mr Alessi had experience in diagnosing and testing the effects of ECU editing, and considered that removal of the DPF, bypass of the sensors and editing of the ECU eliminate many safety and protection devices installed by the manufacturer to protect the engine and driveline (at D[30(2)]);

(3) that no complete copy of the "ECU edit file" was produced, which would have assisted (at D[30(8)]):

"A review of the complete copy of the ECU edit file, and comparison to the OEM file would have identified whether fuel and load maps had been altered, but this was not done or produced. (I note that in reply, Mr Organ claimed that a file had been obtained and it did not show any relevant edits, but apparently conceded that any such report was not produced in evidence.)"

1. Critical paragraphs of the Decision were the Tribunal's findings in relation to the expert evidence at D[32]-[39], which are set out in full below (our emphasis in italics):

"Findings in relation to expert evidence

Cause of the premature engine failure, contribution by DPF work, and whether it could have been avoided

32. Having considered and weighed the evidence of parties, I make the following findings on the balance of probabilities

(1) The engine failure was not caused by overheating as was initially identified in the DFT report. The parties agreed on this, and provided cogent reasons why overheating was not the cause.

(2) The engine failure was caused by an over-fuelling issue. Again, the parties agreed on this and provided cogent reasons as to why this was the immediate case of the engine damage.

33. The parties put forward competing theories on the cause of the over-fuelling issue:

(1) The applicant's expert suggested variously that it was caused by the respondent failing to diagnose an underlying issue with the engine by failing to respond to the symptoms identified by the applicant, failing to replace any or all of the injectors, and failing to undertake necessary tests, including comprehensive injector tests and a cylinder balance test. Ultimately he settled on the case as a faulty crank angle sensor, which he claimed should have been identified by the respondent as the cause of the engine problems on the basis of the symptoms identified by the applicant or through a cylinder balance test.

(2) The respondent's expert concluded that the ECU edit undertaken by Tune Works, together with the modification of the DPF and associated sensors was the most likely cause of the engine damage and failure.

34. In relation to the claims that the respondent failed to test and diagnose issues appropriately, I note that Mr Organ's claims rely to a significant extent on his assumption that the issues were raised with the respondent by the applicant. I have found that they were not, neither initially nor at the service. In general, in relation to testing, I am not persuaded by Mr Organ's assertions that particular tests should have been done that a reasonably competent engine reconditioner would have undertaken the test he claims. There was no substantial supporting evidence of standard procedures put forward by Mr Organ or the applicant generally that were not followed.

35. In relation to the possibility that the issues were caused by the respondent not replacing any or all of the injectors, I am not persuaded that this is the case. I have found that the respondent replaced the injector which ailed during the reconditioning process, and that he offered to replace the other injectors but the applicant did not wish to do so. Further, I find persuasive the respondent's argument that if one or more injectors were at fault, it would be expected that not all the injectors would show signs of over-fuelling, and that the fact that they did indicates a common cause rather than individual failure.

36. The remaining possible cause proposed is an issue with the ECU, which caused the engine fuelling systems to malfunction. The applicant argues that this was caused by a faulty crank angle sensor and this should have been identified by the respondent. The respondent argues that a 'hot tune' or other tampering with the ECU and DPF was the most likely cause.

37. A download of the computer system data log may have thrown light on the cause of the overfuelling issue or at least whether the edit of the ECU undertaken by Tune Works compromised the electronic fuelling system for the engine. Mr Organ suggested that First Diesel Services had confirmed that the only change to the ECU was stopping the re-generation process, but was unable to point to evidence of this.

38. In relation to a faulty crank angle sensor as the possible cause, as the respondent pointed out, this was a ate theory proposed by Mr Organ, after the part appeared on the revised invoice from Tune Works from March 2023. He did not test or examine the sensor. There are issues with the reliability of the documentation relating to the work done by Tune Works in March 2023, that is, there are duplicate but different invoices with the sensor appearing on one, and different parts and costs detailed generally. Further, even if the sensor did fail, it is not clear when and why it might have done so. And in any case the applicant has not persuaded me that testing of the crank angle sensor is a test which any reasonably competent engine reconditioner would have undertaken as part of services provided.

39. Ultimately, I prefer the evidence of the respondent's expert that an ECU edit undertaken by Tune Works, which interfered with the fuelling system for the engine, is the most likely cause of the fuelling issues, and consequently the engine damage and failure. While the DPF work may have contributed directly by changing back pressure to the engine, a failure of the computer system caused by the Tune Works edit is the most likely cause of the engine damage leading to engine failure. This finding is also supported by the additional evidence provided by the respondent, including two letters from other mechanics about the issue (R4, 32, 33), and the resultant potential damage to the engine that can be caused by the practice of hot tuning a vehicle."

1. The Tribunal then summarised the findings of fact and made its conclusions in respect of whether the Appellant had established any legal basis for his claims at D[40]-[41]:

"Summary - findings of fact

40 In summary, the particularly relevant findings of fact that I have made are the following:

(1) The applicant did not raise general issues with the running of his vehicle (including blowing smoke, running over, hard to start) with the respondent initially or at the service.

(2) The most likely cause of the engine failure was the work done by another party which involved an illegal modification of the exhaust system and a modification of the Electronic Control Unit for the vehicle, which caused the engine failure.

(3) The applicant has not established that the work done by the respondent was not done with due care and skill.

(4) The applicant has not established that the respondent removed items from the engine or was responsible for any damage to items.

(5) The applicant has not established that the express warranty provided with the work done by the respondent was breached. This finding is based on my findings that the applicant did not raise issues with the running of the vehicle and commissioned an illegal modification of the vehicle and therefore did not fulfill conditions of the warranty.

Have any consumer claims been established?

41. In light of my findings of fact, I conclude that the applicant has not established any legal basis for his claims. In summary:

(1) The applicant has not established that there was a failure of the respondent to meet the guarantees of 'due care and skill' and 'fitness for purpose' in relation to services, or any other relevant guarantees.

(2) The applicant has not established any relevant breaches of guarantees as to the supply for goods.

(3) The applicant has not established any breach of contract.

(4) The applicant has not made out any other relevant cause of action.

It follows that the application should be dismissed."

1. The Appellant relied upon the following materials:

(1) A1 - a Notice of Appeal and accompanying documents filed 22 November 2024.

(2) A2 - a folder (bundle) of material filed 30 January 2025 which contained a different version of the Notice of Appeal Form, unsigned and typed, an index of items 1-44, 110 pages of written material, and a list of attachments which included photographs and other items. It was not stated on the documents what, if any, of this material had been produced to the Tribunal at first instance.

(3) A4 - An opening statement/submissions filed on 28 February 2025 in response to the Respondent's submissions (27 pages);

(4) A5 - a document titled "Statement for the NCAT Appeal Panel" (10 pages) filed 26 March 2025.

(5) A6 - Further submissions/bundle emailed to NCAT on 25 June 2025 (67 pages), plus a note and medical certificate concerning Mr Organ (2 pages), and a 100+ page document titled "piston damages: remedying and rectifying" (extracts). Notably, this material was sent by Mr Organ to the Tribunal by email after the adjournment of the first hearing of this appeal, despite us having advised (Note 2 to our orders made 25 March 2025) that no further materials were to be submitted.

1. A bundle of documents filed by the Appellant on 5 March 2025 (A3) titled "Request for Adjourment (sic) - NCAT Appeal Panel" related to an adjournment request which had been determined on the papers and refused by orders made 6 March 2025. That decision was not appealed. The Appellant's representative confirmed that these documents were not relied upon in this appeal, and we therefore did not consider them.
2. The Respondent relied upon:

(1) An indexed and paginated bundle of materials filed 20 February 2025 (from which pages 2-4 were subsequently removed), which included:

(a) Respondent's evidence provided to the Tribunal at first instance (pages 5 to 100), including the expert report of Mr Alessi including his qualifications and attachments thereto; and

(b) their written submissions in this appeal (pages 101 to 104); and

(2) A supplementary (updated) index and two additional pages of material provided to the Tribunal at first instance (pages 105 and 106) filed 26 February 2025.

1. The Appellant was required to present all evidence before the Tribunal at first instance on which he intended to rely, as well as typed transcript of the relevant parts of the hearing if what happened at the hearing was being relied upon.
2. The Appellant informed us that there was no sound recording of the proceedings below due to a technical issue, and therefore no transcript could be produced. Accordingly, we are unable to verify some of the matters alleged by the Appellant in respect of the conduct of those proceedings.

The first hearing of this appeal (part heard and adjourned)

1. The Appellant did not attend the hearing before the Appeal Panel on 25 March 2025 due to ill health. For reasons that it is unnecessary to outline, we gave Mr Organ leave to appear for the Appellant. Unfortunately, the hearing could not be completed due to Mr Organ's ill health.
2. The hearing on 25 March 2025 was prolonged due to the length, repetition, and structure of the Appellant's written submissions and by the inability of Mr Organ to directly and concisely respond to our questions. We spent the majority of the first hearing day of this appeal seeking clarification from Mr Organ about the written material the Appellant really relied upon and attempting to identify with some precision the relevant grounds of appeal. However, this proved to be a difficult task . Ultimately, Mr Organ advised the Appeal Panel that he relied upon every page of the extensive documentary material supplied on behalf of the Appellant.
3. We were able to hear part of the oral submissions on behalf of the respondent. Ultimately, we made orders to adjourn, including a direction no further written material (submissions or evidence) were to be provided to the Appeal Panel unless ordered otherwise.

1. The matter was subsequently relisted for hearing on 1 July 2025.
2. On 26 March 2025, Mr Organ wrote to the Tribunal advising he was too ill to continue. Despite our direction against the provision of additional written submissions, the correspondence from Mr Organ included some brief remarks about the merits of the Appellant's case. This included the following contention about the cause of the failure, which served to highlight the differing explanations provided by Mr Organ:

"This was a very simply a matter that should have been settled quickly, with an insurance claim.

It was proved by an Independent diesel fuel systems specialist, that the injector in number three cylinder was the most probable cause/reason for the failure."

1. On 30 March 2025, Mr Organ emailed a 9 page typed "Without Prejudice" document to the Tribunal.
2. On 25 June 2025, a bundle of documents was sent to the Tribunal. It included a medical certificate regarding Mr Organ, and a statement that he would not be attending due to his medical condition.

1. The Appellant attended the second day of the appeal hearing in person, accompanied by his wife.
2. Mr Organ also attended the hearing and asked to be heard. We did not grant Mr Organ's request to be heard on the second day of the appeal hearing.
3. The Respondent's solicitor then recommenced his oral submissions.
4. Mr Sharpe was provided with an opportunity to present oral submissions in reply. However, this principally, consisted of his account of the circumstances of his claim. As it was clear that Mr Sharpe was seeking to start from the beginning in presenting and prosecuting his case, we explained the role of the Appeal Panel which was not to hear his case again.

1. The Appellant's original Notice of Appeal, which was signed, was subsequently rewritten in a completely different form and included in the materials subsequently filed.
2. Having considered the grounds of appeal in the Notice of Appeal and the material in the written and oral submissions, bearing in mind the approach we should take to an unrepresented litigant referred to in, for example, Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [28], we consider that the real grounds of appeal pursued by the Appellant were:

(1) Ground 1 - There was a denial of procedural fairness;

(2) Ground 2 - The Decision was against the weight of evidence;

(3) Ground 3 - New evidence should be permitted in proof of the Appellant's claims; and

(4) Ground 4 - The Tribunal failed to properly recognise the legal bases of the claims.

1. We should also mention two other grounds to which some reference was made:

(1) The decision was affected by bias of the Tribunal member in favour of the Respondent; and

(2) The Tribunal member did not have the necessary qualifications to understand the expert evidence.

1. An allegation of bias raises a question of law. Whilst an allegation of bias should usually be addressed before all other grounds of appeal, for reasons explained below we do not consider that this approach is warranted in this case.

1. The first ground advanced is that the Tribunal denied procedural fairness to the Appellant because:

(1) The Tribunal member:

(a) allowed the Respondent to interrupt the proceedings and the giving of evidence;

(b) harshly criticised the documentation as being "disorganised"; and

(c) yelled at Mr Organ.

(2) The Tribunal's response to Mr Organ's medical emergency was inadequate.

(3) The Respondent's expert, Mr Alessi, failed to participate in a pre-hearing meeting between the experts.

1. As set out in Prendergast, a failure to afford procedural fairness raises a question of law.

1. The Appellant submits that the Tribunal member allowed Mr Organ to be interrupted by the Respondent at the hearing while giving his evidence and, further, also interrupted him or was rude to him..
2. In the absence of an available sound recording or transcript, we are unable to assess the merits of this ground of appeal, although we do note that the Appellant was unspecific both as to what actually transpired and as to the impact and materiality of any conduct.

1. It is not in dispute that Mr Organ had a medical emergency. The reasons extracted above (D[7]) refer to the adjournment of the first hearing as a result.
2. However, the Appellant has not shown why any aspect of what occurred was procedurally deficient or had any material impact upon the outcome.

1. We were not provided with any evidence as to what, if anything, failed to occur concerning a meeting between the experts before the hearing. Nevertheless, whilst any failure to meet might give rise to procedural orders, we fail to see how it could be a ground for overturning the decision of the Tribunal the subject of this appeal.
2. Accordingly, we do not uphold Ground 1 of the appeal.

Ground 2 - Decision was against the weight of evidence

1. It seems to us that the main criticisms raised by the Appellant are properly categorised as a complaint that the decision was against the weight of the evidence. As already mentioned, leave to appeal is required in respect of this ground.
2. As to these main criticisms, the Appellant contended that the Tribunal erred in that it was misled by the Respondent's expert witness, Mr Alessi whose evidence was preferred. Mr Alessi said that the engine failure was most likely caused by the ECU editing that was subsequently undertaken by Tune Works, because the ECU editing caused overfuelling.
3. This, the Appellant submitted, was against the weight of evidence because Mr Organ had provided the evidence that proved this was incorrect, and it was either ignored or given insufficient weight by the Tribunal.
4. In Collins v Urban (at [77]), the Appeal Panel said:

"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..."

1. This ground of appeal is to be contrasted with a contention that material evidence was overlooked which, potentially, raises a question of law.
2. Some of the Appellant's submissions were of this latter kind. Most prominent, was a contention that the Tribunal had ignored physical evidence of the pistons which Mr Organ brought with him to the hearing. However, as with other submissions of a like nature about ignoring evidence, the Appellant did not show us the specific evidence that had been allegedly overlooked and explain the significance of any such evidence.
3. A fundamental problem for the Appellant with this ground of appeal was that the contention did not proceed by reference to the whole of the evidence presented to the Tribunal. Not only was there the problem with the absence of the oral evidence presented to the Tribunal but we were not supplied with Mr Organ's expert reports.
4. In essence, the dispute between the parties revolved around competing assertions about the cause of the engine failure. As to this, the Tribunal analysed the evidence and determined that it preferred the explanation advanced on behalf of the Respondent. We detect no error in this approach.
5. We find no basis upon which to dispute Mr Alessi's qualifications as an expert. A copy of his report, which included his expertise and qualifications, was produced by the Respondent in its appeal materials.
6. Regardless of the Tribunal's positive finding as to the cause of the failure based upon the evidence from Mr Alessi, the Appellant bore the onus of proof to establish his claim. Importantly, the Tribunal pointed to the "various" alternative theories advanced by Mr Organ regarding the cause of the engine failure, and it is apparent to us from the reasons above that he did not maintain a clear and consistent position in the evidence he presented. This also presents as an important weakness for the Appellant in respect of this ground of appeal.
7. Critically, as well, the Appellant did not show why the finding that the Appellant did not report issues with the engine blowing black smoke was against the weight of the evidence, despite the warranty terms requiring issues to be reported promptly to the Respondent.
8. For these reasons, we reject the contention that the decision was against the weight of the evidence.

Ground 3 - New evidence presented by the Appellant

1. We have already set out above the terms of the condition concerning new evidence for the grant of leave to appeal contained in cl 12 (1) (c) of Sch 4 of the NCAT Act.

1. The Notice of Appeal as filed said that new evidence would be adduced from Tune Works. This was expanded upon in the typed Notice of Appeal form at page 6 which said:

"I will have the owner of Tuneworks at Raymond Terrace, who give a full description on the poor condition of the vehicle prior to the 1st Service and other problems as well.

He also will give evidence on the condition of the vehicle and components after the vehicle was delivered to his workshop after the failure.

He also, will give against the opinion given by Mr Alessi and that the facts given in evidence by the Respondent and Respondent's expert are misleading and deceptive.

Also, he will give his expert opinion on Mr Organ's report and state the reasons why he believes that the most probable cause/reason given in Mr Organ's report is 100% correct."

1. But it was confirmed at the hearing that no such evidence from Tune Works was before the Appeal Panel.

1. The Appellant also sought to introduce further documentation in the form of:

(1) photographs accompanying the (extensive) written submissions seeking to establish that damage to the transmission was not caused by the motorway accident;

(2) a photograph of "No 3 piston" and published documentation relating to pistons in furtherance of the submissions regarding Mr Organ's expert evidence; and

(3) evidence about a job card prepared by First Diesel.

1. However, there was no attempt by the Appellant to establish that any of this material was not reasonably available at the time of the hearing and it is impossible for us to conclude that it was not reasonably available.
2. We reject this ground of appeal.

Ground 4 - failed to properly recognise the legal bases for the claims

1. The Appellant, through Mr Organ, submitted that the Tribunal did not properly recognise the claim for breach of warranty or the claims based upon the Australian Consumer Law. However, Mr Organ was not clear about how the Tribunal erred in these respects.
2. We reject this ground of appeal.

1. We have referred above to the approach to be taken concerning the discretion to grant leave to appeal. As to this, the Appellant has failed to show that the decision of the Tribunal was more than arguably wrong or that there were important findings of fact that were unreasonably arrived at. Furthermore, the Appellant has not shown that the appeal involves any question of principle.
2. Accordingly, for these reasons alone we would have refused to grant leave to appeal even if the other requirements for the grant of leave have been established.

1. Finally, we will briefly deal with the other purported grounds. In summary, we are satisfied that none of these grounds of appeal should be allowed.

Did not have the necessary technical qualifications

1. The Appellant said that the Tribunal did not have the necessary technical understanding of the matters the subject of the expert evidence.
2. However, there is no such requirement for valid decision-making. This ground is misconceived.

1. The ground that the Tribunal member demonstrated bias in favour of the Respondent was not pursued in oral submissions.
2. Any allegation of actual bias must be distinctly made and clearly proved and a finding of actual bias, in the sense that the decision-maker's mind is closed to persuasion, is not made lightly: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.
3. There was no statement or other documentary evidence to support any submission of actual bias against the Tribunal Member.
4. There will be reasonable apprehension of bias if a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
5. We were not shown any material that was capable of supporting a conclusion of apprehended bias.

1. The claim in these proceedings was for a total of $26,000, which is less than the $30,000. Accordingly, the general rule in s 60 of the NCAT Act applies, and each party bears its own costs unless we find there are "special circumstances" and we believe that those special circumstances warrant an award of costs: NCAT Act, s 60. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters listed in s 60(3).
2. The Respondent's submissions, when filed on 20 February 2025, stated the following at [9] in respect of costs:

"The Appellant's claim ought to be dismissed in its entirety with costs. Should the application be dismissed, the Respondent intends to seek costs."

1. The Respondent did not appear to have regard to Note 2 to the orders made by Principal Member Blake on 13 December 2024. Those orders set down the timetable for the filing of evidence and submissions by the parties and the listing of the hearing for 25 March 2025. Note 2 stated the following:

"(2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal."

1. In this case, we do not propose to seek further submissions from the Respondent in amplification of their claim to costs. The Respondent has had the opportunity to make such submissions, including, as to why special circumstances exist, and has not done so.
2. It is clear that the absence of legal representation, the confusion caused by the materials filed, the role taken by Mr Organ, and the bifurcated nature of the hearing each caused additional cost and frustration to the Respondent. Nonetheless, we accept there were serious medical issues relating to the Appellant and Mr Organ which contributed to these events in a major part and, in all the circumstances, we are not prepared to find that there are special circumstances that warrant the making of an award of costs in favour of the Respondent under s 60 of the NCAT Act.

1. For the above reasons, we make the following orders:

(1) To the extent that leave to appeal is required, leave is refused.

(2) The appeal is dismissed.

(3) No order as to costs.

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.