Before considering this issue, it is appropriate to set out the applicable legal principles.
[2]
The applicable legal principles
Section 62(2) of the NCAT Act creates an express obligation for the Tribunal to give written reasons for a decision in response to a request from a party. When such a request is made, a written statement of reasons must be given within 28 days and must, by virtue of s 62(3) of the NCAT Act, set out:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) two members of the New South Wales Court of Appeal raised but did not decide the question of whether there is any duty, whether statutory or otherwise, for the Tribunal to give reasons for a decision in the absence of a request from a party under s 62(2) of the NCAT Act: Bell P at [54], Ward JA at [110-[114]. Bell P at [55] observed that it is not unreasonable to suppose that s 62(3) of the NCAT Act supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) of the NCAT Act, and that the balance of his reasons proceeded on that basis.
Even though there is no other express statutory duty to give reasons set out in the NCAT Act (other than pursuant to cl 11 of Sch 6 which relates to decisions of the Tribunal in the Guardianship Division), the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions: NCAT Policy 2, Publishing Reasons for Decisions, at [5]-[6].
In Orr Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing):
"[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)."
"[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original)
"[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original)
[71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party):
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law, and
I the reasoning processes that lead the Tribunal to the conclusions it made.
[77] These principles include the following:
(i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ);
(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111;
(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;
(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291;
(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23] (Origin Concepts); P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18] (P8 Auto).
In Orr the Court of Appeal, and in Origin Concepts and P8 the Appeal Panel, proceeded on the basis that failure by the Tribunal to provide proper reasons, raised a question of law. However, the recent decision of Director of Public Prosecutions v Tiller [2023] NSWSC 187 (Tiller), makes the observation that this may not always be the case.
Tiller concerned an appeal from a decision of a Magistrate, which included a ground that the Magistrate had failed to provide proper reasons. McNaughton J reviewed the authorities, principally those arising in the context of criminal law proceedings. She did not refer to any decisions of the Appeal Panel nor decisions from the Appeal Panel to the Court of Appeal.
At paragraph [48] she set out the following passage from Beech - Jones J in JP v Director of Public Prosecutions [2015] NSWSC 1669 at [65]:
'A failure to provide reasons can constitute an error of law (Campbelltown City Council v Vegan [2006] NSWCA 284 [131]). A complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the case particular case, but pose a question as to the obligation of the particular officer to address a particular matter. A complaint of this kind was upheld in Shepherd v Nestoriadis [2015] NSWSC 348 (Shepherd). However, as discussed below in [72], if the complaint concerns a matter of fact then on appeal restricted to a question of law, the obligation to provide reasons is of very limited content (Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281- 282 (Soulemezis).'"
In Shepherd v Nestoriadis [2015] NSWSC 348 at [27] the Court referred to the following statement from Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88:
"There is a question of law alone if the question can be stated and considered separately from the facts to which it may be connected in a given case."
In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, Kirby P at 259 observed that a judge is obliged to state generally and briefly the grounds which had led him or her to the conclusion reached as to disputed factual questions and to list the findings on the principal contested issues.
A ground of appeal that the Tribunal failed to provide proper reasons will rarely involve the consideration of a question of law alone. One instance might be where there was a failure to address whether the Tribunal had jurisdiction to hear and determine the matter before it. However, most appeals will involve a consideration of questions of mixed fact and law, as was the case in Orr (except perhaps for one matter), and in Origin Concepts and in P8 Auto. It appears to us that the present matter also falls into that category.
If it is not possible to identify a separate question of law, an appellant may still be able to obtain leave to appeal under s 80(2)(b) of the NCAT Act. However, having regard to the limited circumstances where this is permissible under cl 12(1) of Schedule 4 of the Act, and the Appeal Panel's decision in Collins, this will not be appropriate in most cases.
[3]
Consideration
We are inclined to follow Orr and the previous decisions of the Appeal Panel and treat this ground of appeal as raising a question of law. To the extent that this position is not entirely consistent with the cases cited by McNaughton J in Tiller, the explanation may be that in the Tribunal, s 80 and cl 12(1) in Sch 4 of the NCAT Act provides a specific statutory framework for the bringing of internal appeals, and s 62(3) of the NCAT Act (referred to at [37] above) sets out what must be included in a Tribunal's written statement of reasons on a request by a party. There are no equivalent provisions to be found in the general law.
Having regard to the principles set out in Orr, we have come to the view that the Tribunal did provide adequate reasons for its decision in this instance. The critical finding was that the owner had not established to the required level of proof that he was entitled to a refund of the money paid. In our view, the Tribunal did consider and made findings in relation to material questions of fact as to why a refund should not be ordered and that a work order was the appropriate remedy, and also the reasoning processes which led to that conclusion. We refer to these matters below in relation to our consideration of issue 2.
The Tribunal Decision could, and perhaps should, have included a brief statement of the legal principle as to when it is appropriate to order a complete refund (we have referred also to this principle below under Issue 2), but we do not regard this omission as sufficient to vitiate the decision as a whole.
If we were to follow the authorities referred to in Tiller and treat this ground not as an error of law, but as a question involving mixed fact and law, we would not grant leave to appeal in any event. As we have noted this ground was not raised by the appellant, but by the Appeal Panel. It was not embraced by the appellant who understandably wanted us to decide the matter on the merits and in his favour, rather than having the matter remitted to the Tribunal for reconsideration. In these circumstances we do not consider it appropriate that the Appeal Panel itself should be the party seeking the leave.
Finally, if we had found the reasons not to be adequate, we would not have remitted the matter to the Tribunal for further consideration. This is a case where the only conclusion open on the evidence was that reached by the Tribunal: see Zhang v Andrew Pine Furniture Pty Limited [2004] NSWCA 250 at [31].
[4]
Issue 2: whether leave to appeal should be granted to the owner and if so whether the appeal should be allowed
The issue is whether the evidence supported the Tribunal's finding that a work order was the appropriate remedy rather than a refund of the moneys paid by the owner. Under the general law a refund is the appropriate remedy where there has been a total failure of consideration - for example where one person has conferred a benefit upon another, most commonly by the payment of money, and the other party has been unable or unwilling to perform its part of the bargain.
In Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 (Baltic Shipping), the High Court considered this principle in the context of a claim by a cruise ship passenger for the refund of her entire fare when the vessel was holed and sank part way through the cruise. The claim was not successful. Mason CJ said at 353:
"I have come to the conclusion in the present case that the respondent is not entitled to recover the cruise fare on either of the grounds just discussed. The consequence of the respondent's enjoyment of the benefits provided under the contract during the first eight full days of the cruise is that the failure of consideration was partial, not total."
What is the evidence in these proceedings? In his Notice of Appeal set out in 11] above, the appellant says that he "no longer (has) any further trust in what the respondent commits to either verbally or in writing", and "we feel that trust is essential and if we follow the Notice of Order to return our vehicle the work will not be of a workmanlike manner and meet Industry Standards".
The appellant's position, that he had lost confidence and trust in the respondents and their ability to complete the contract satisfactorily, is understandable given the events that have occurred, but it does not, in our view, constitute evidence that the contract has not been performed at all by the respondents, only that the owner was not happy with the quality of the restoration works. In other words, there has been a partial, but not a total failure of consideration.
There is also the evidence of Mr McQuillan, a licensed panel beater and spray painter, who the owner relied on as an independent expert in the Tribunal. His evidence, (as summarised in the Tribunal Decision), was that "the vehicle would need to be rubbed back to bare metal to receive any kind of warranty from the repairer", and "to do that the $15,000 spent on the original work would not cover a full bare metal rectification".
Apart from this global figure, Mr McQuillan did not, (as recorded in the Tribunal Decision at [10] [11] and [12] set out above), provide "any itemised list of the defects and estimated cost(s) of the rectifications and or repairs to those defects", so that the Tribunal was "unable to establish what are the costs of works undertaken and further required". It was due to this evidence, in particular, that the Tribunal could not satisfied the appellant had established to the required level of proof, a claim for a refund of the moneys paid.
In our view the Tribunal came to the correct decision. There was no evidence, or at the least not sufficient evidence, of a total failure consideration and therefore no entitlement to a full refund. It may be that the Tribunal, when referring to the lack of evidence about the value of the work carried out, and still required to be carried out, was contemplating, as it was entitled to do, making an order for a partial refund, instead of a complete refund, of the money paid. But without that evidence, the only option available to the Tribunal was to make the work order.
We should also make the observation that if Mr McQuillan's evidence is accepted on this point, the value of that order may be worth more to the appellant than a full refund.
In our view orders 1 and 2 of the Tribunal's 8 December orders which related to the making of the work order, were not made against the weight of the evidence, as that expression is explained in Collins, and leave to appeal on issue 2 should be refused.
We make two further observations in relation to this issue. In Baltic Shipping, Mason CJ at 350-354 drew a distinction between an entire contract, such as the cruise fare in those proceedings, where the money paid is for the completion of the whole project, and a contract where money is payable on the completion of separate stages or sections of the overall contract. In the latter situation, a failure to perform contractual obligations is to be assessed for each stage or section.
In the proceedings under appeal, the evidence is that the appellant had paid for the restoration works in three instalments of $5,000 each (and then a further $1,061.50 for parts), but there was no evidence that the $5,000 payments were for specific aspects of the restoration works, only that they were progress payments for the whole of the work. Thus the contract for the restoration works should be construed as an entire contract.
Secondly, the appellant sought his relief under the Australian Consumer Law (NSW). The Tribunal Decision also noted that the claim was brought under the Motor Dealers and Repairers Act 2013 (NSW). We are not aware of any provisions in either of those statutes which alter the general law principles regarding an owner's entitlement to a full refund due to defective workmanship.
[5]
The disposition of the appeal
In view of the time that has elapsed since the Tribunal Decision we will need to amend the dates in the work order. We will allow five weeks for the appellant to deliver the vehicle to the respondents and a further six months thereafter for the works to be completed.
[6]
Orders
We make the following orders:
1. Leave to appeal is refused;
2. In order 1 of the Tribunal Decision dated 8 December 2022 (as amended on 22 December 2022), the date for the completion of the works by the respondents is extended from 8 June 2023 to 8 December 2023;
3. In order 2 of the Tribunal Decision dated 8 December 2022 (as amended on 22 December 2022) the date for delivery of the vehicle by the owner to the respondents' place of business is extended from 8 January 2023 to 11 August 2023.
[7]
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: 14 July 2023
Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of possible questions of law, which relevantly includes whether there has been a failure to provide proper reasons.
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:
1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or
2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c)).
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 Sch 4 of the NCAT Act 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." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal:
"[84] The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) 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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be varied, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (b) and (e) of the NCAT Act.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision of the Tribunal, an internal appeal 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.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that 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 to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, 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.