Sproule v D P James Carpet Laying Pty Ltd

Background

1. In the first half of 2016 the appellant approached the respondent to supply and install new carpet in the appellant's house.
2. In June 2016, and in accordance with the appellant's then order, the respondent supplied and installed Hycraft Merino Homestead colour 720 carpet in the appellant's main bedroom and walk-in-wardrobe.
3. In February 2017, following on from another order from the appellant, the respondent supplied and installed the same carpet, Hycraft Merino Homestead colour 720, in the balance of the appellant's house.
4. The appellant complained that there was a colour variation between the two lots of carpet supplied and installed. The appellant desired carpet of the colour supplied in June 2016, but not the colour of the carpet supplied in February 2017. The appellant refused to pay the balance owing to the respondent, being the sum of $14,495.
5. The parties unsuccessfully sought to resolve their dispute. The appellant commenced proceedings in the Tribunal seeking to be relieved of his obligation to pay the respondent the balance owed.

The Tribunal's Decision

1. As part of the case management of this dispute the Tribunal directed the appellant to lodge with it, and serve on the respondent, any documents or evidence he intended to rely upon at the hearing. The appellant did not lodge and serve any documents in compliance with that direction.
2. The Tribunal found that there was no evidence that the carpet supplied and installed by the respondent was not as the appellant had ordered.
3. At the hearing evidence was given by the respondent's salesperson. She gave evidence that the carpet supplied to the appellant was as shown to and ordered by him when described by colour and by stock number. She gave evidence that she had drawn the appellant's attention to the possibility of slight colour mismatch (between what is not made clear in the Tribunal's reasons, but nothing turns on that uncertainty). The Tribunal accepted the evidence of that salesperson.
4. Three samples of carpet were tendered at the hearing: the manufacturer's master sample and two specimen pieces from the carpet laid. The Tribunal found that there was a colour variation discernible between the master sample and the specimen pieces, but the variation was slight and was consistent with the photos tendered by the respondent (of the carpet as laid and a sample of that same carpet taken off-site and photographed under different light).
5. The respondent also tendered an expert report authored by a Technical Officer employed by the manufacturer of the carpet. That report stated that the officer had inspected the carpet as laid in the appellant's house. He said that there appeared to be a shade variation between the carpet laid in June 2016 and that laid in February 2017, and that the two lots of carpet came from different dye lots. He said that he compared a sample of the carpet (from which lot is not specified) to the manufacturer's quality control master sample and the sample appeared to be within manufacturing tolerances. He said that no other claims had been received in relation to that production run.
6. The Tribunal said that this expert evidence was not "top grade independent evidence", but the appellant had produced no material to challenge that report. Although not said expressly, it is apparent that the Tribunal accepted that expert evidence.
7. Based upon the matters we have referred to above the Tribunal said it was not satisfied that the grounds to make the orders sought were established.

The Grounds of Appeal

1. The appellant appealed (within time) from the Tribunal's decision.
2. The appellant appealed on two grounds which he said gave rise to questions of law. They were that: 1. the Tribunal erred in admitting the expert report tendered by the respondent; 2. alternatively, the Tribunal erred in giving the expert report too much weight.
3. If those grounds did give rise to questions of law, then the appellant had a right of appeal on those grounds.
4. The appellant also sought leave to appeal on a ground other than a question of law, namely that the appellant had suffered a substantial miscarriage of justice because there was significant evidence which had not been tendered at the hearing before the Tribunal.
5. It is appropriate to deal with the application for leave to appeal first.
6. Before doing we note that in his Notice of Appeal the appellant had raised a number of grounds of appeal additional to those we have outlined above. These were all expressly abandoned at the hearing of the appeal and need not be referred to further save as to say that the abandonment of those grounds was appropriate and proper as none of those grounds alleged any errors of a kind which might be considered on an appeal, with or without the granting of leave to appeal.

Leave to Appeal

1. In seeking leave to appeal the appellant relied upon sub-clauses 12(1)(a) and (c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 No. 2 (NSW) (the "NCAT Act").
2. Clause 12(1) provides: 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).
3. In reliance upon cl 12(1)(a) and (c) the appellant sought to tender on the appeal an email dated 11 January 2017 from an employee of the respondent's to the appellant. A portion of that email was in the evidence tendered by the respondent before the Tribunal, but not its entirety. The appellant also sought to tender on the appeal a series of photographs. Unless otherwise stated we shall refer to the email and the photographs collectively as the "new evidence".
4. The appellant first submitted that the new evidence fell within cl 12(1)(c). However, the appellant properly conceded that this new evidence was available to him at the time the proceedings were being dealt with by the Tribunal. Accordingly, cl12(1)(c) cannot apply as that sub-section requires the new evidence to have been "not reasonably available" at the time of the hearing before the Tribunal.
5. Further, we do not think the new evidence is "significant" as cl 12(1)(c) also requires. The Tribunal had before it samples of the carpet, and the Tribunal accepted there was a colour difference between the two lots of carpet. The issue was not whether there was a colour difference, but whether that colour difference was so great as to be of significance to the legal issues between the parties.
6. As the Tribunal: 1. found there was no evidence that the carpet supplied and installed by the respondent was not as the appellant had ordered; 2. accepted the evidence of the respondent's salesperson (see [10] above); 3. examined samples (see [11] above); and 4. accepted the expert's opinion that the variation of colour was within manufacturing tolerances (see [12] above), we are not persuaded that the new photographs are "significant" in that context.
7. We are of the same opinion in relation to the new email. The email says: "Hi Matthew, I have attached the copy of the layout on 2 pages and also marked the bedroom as completed for your information. It would be a good idea to order the carpet as there is currently stock available, but there is not a huge amount and (sic) the Merino so I would not like to order in a couple of weeks to find that there is not ample stock to cover your rooms in one dye lot. If you have any questions please do not hesitate to contact me."
8. The appellant submitted the email was significant because it referred to one dye lot and that there was sufficient stock available. The appellant submitted that a fair reading of the email would lead the reasonable reader to conclude that the stock then available was the same as that supplied seven months earlier.
9. We do not agree. This email was dated 11 January 2017, some seven months after the appellant's bedroom had been carpeted. The fair reading of it is that the author was referring to there being sufficient stock (from one dye lot) to carpet the balance of the appellant's home, which is what happened. It does not seem to us that the email has any relevance to the carpet supplied seven months earlier.
10. The appellant also submitted, in reliance on cl 12(1)(a) of Schedule 4 to the NCAT Act, that the omission of the whole of the email was not "just and equitable" because the portion of the email which was admitted by the Tribunal was, in the absence of the balance of the email, misleading.
11. We are not persuaded that this is so. First, the Tribunal did not, at least expressly, say anything about the partial email and so it is not apparent that the Tribunal was misled in any relevant way. Second, and in any event, it does not seem to us that the whole email was of any assistance to the appellant's case for the reasons we have set out at [29] above. Thus, it does not seem to us that the appellant "may have suffered a substantial miscarriage of justice" by reason of the incomplete email.
12. There are other difficulties with this ground. The appellant did not seek to tender the complete email when he appeared before the Tribunal, and did not take the point that he seeks to take now, namely that the incomplete email is (in some way) misleading. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Gibbs CJ, Wilson, Brennan, and Dawson JJ cited with approval the statement by six justices of the High Court in Metwally v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 that: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
13. Even more so, their Honours explained, where had the point been raised at the hearing the respondent would have called further evidence. In the present case that further evidence would have been from the salesperson as to conversations surrounding the email which would explain its proper meaning.
14. For those reasons we rejected the tender of the new evidence and rejected leave to appeal on a ground other than a question of law based upon that new evidence.

The Expert Report

1. The appellant submitted the Tribunal erred in law in admitting the expert report because: 1. the report did not comply with s 79 of the Evidence Act 1995 (NSW) in that the expert did not have the requisite specialised knowledge to give the opinions set out in the report; 2. the independence of the author of that report was questionable; and 3. alternatively, the appellant submitted the Tribunal gave the report too much weight.
2. Section 79(1) of the Evidence Act provides: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
3. The opinion rule, to which s 79(1) is an exception, is that set out in s 76 and provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
4. The Tribunal is not bound by the rules of evidence [see s 38(2) of the NCAT Act] subject to the rules of natural justice. The appellant makes no complaint that natural justice was not observed.
5. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43 the Court of Appeal considered the question of the admissibility of evidence in a non-evidence-based jurisdiction (the Workers Compensation Commission). The Commission was so described because s 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provided: The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
6. At [82]-[83] in Hancock, Beazley JA, with whom Giles and Tobias JJA agreed, said: "[82] Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone. [83] In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. .."
7. In Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [191] the Appeal Panel (constituting Wright J, Seiden SC and Titterton), held that the reasoning and approach set out in Hancock at [82] - [83] should be applied to proceedings in the Tribunal.
8. It is apparent from the Tribunal's observations that the expert evidence was not regarded as "top grade independent evidence" and thus the weight given to it was somewhat diminished because it was not independent evidence. However, the appellant had produced no material to challenge that report, and, in those circumstances, it is implicit in the Tribunal's reasons that the Tribunal was satisfied that that expert evidence provided a satisfactory basis upon which the Tribunal could make its findings.
9. Accordingly, the appellant's submission that the report was wrongly admitted into evidence is not made good because the Tribunal was not bound to apply s 79.
10. The appellant also fails to persuade us that the ground that the Tribunal gave the report too much weight gives rise to a question of law, or that (assuming a question of law did arise) the Tribunal in fact gave the report too much weight or was, in some way, in error in doing so.
11. A question of law does not arise where a finding of fact is made contrary to the weight of evidence [see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA, with whom Samuels JA agreed, at 155; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 per Leeming JA, with whom Basten and Meagher JJA agreed, at [57]; Re R [2000] NSWSC 866 at [25]; Haines v Leves (1987) 8 NSWLR 442 at 469 - 470].
12. Assuming we were wrong on that point, there is no material which establishes that the Tribunal in fact gave the report "too much weight". There is nothing explicit or implicit in the Tribunal's reasons that supports that submission. Indeed, given the Tribunal's observation that the report was not "top grade independent evidence" it is apparent that the weight of the report was discounted from what might ordinarily be granted to an independent expert report.
13. As we have mentioned, the Tribunal relied upon other evidence (and the absence of evidence from the appellant) which all supported the respondent's case. In light of that evidence, and the absence of expert evidence to the contrary, we are not persuaded the Tribunal gave the respondent's expert report too much weight.
14. Accordingly, we dismissed the appeal.
15. The issue of costs was raised with the parties. The respondent did not apply for costs. Accordingly, each party ought bear his and its own costs of the appeal.

Orders

1. The Orders we made at the conclusion of the hearing of the appeal were: 1. Leave to appeal on a ground other than a question of law is refused. 2. Appeal dismissed. 3. Order that the monies held by the Civil and Administrative Tribunal pursuant to the order made on 17 May 2018 be released to the respondent forthwith. 4. The parties are to pay his and its own costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 19 July 2018