Team K Kustom Pty Ltd v Brar

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) NCAT Act.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel at [13] set out a non-exclusive list of questions of law, including: 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; and 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 Schedule 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; or 2. the decision of the Tribunal under appeal was against the weight of evidence; 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).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), 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 Schedule 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 v Urban, the Appeal Panel stated at [84] 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.
7. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. 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.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 12 March 2020; 2. The Reply to Appeal lodged on 24 March 2020; 3. The bundle of documents lodged by the respondent on 25 May 2020; 4. The Tribunal's Notice of Order dated 11 February 2020; 5. Procedural directions made by the Tribunal on 1 November 2020; 6. The application to the Tribunal dated 22 September 2019; 7. Procedural directions made at the Appeal Panel call over hearing on 26 March 2020 and 18 June 2020; 8. Oral submissions made by and on behalf of the parties at the hearing; and 9. A partial transcript of the hearing, provided to the Appeal Panel by the appellant on the day of the hearing.

Notice of Appeal

1. As the Tribunal gave oral reasons for its decision on 11 February 2020, the appeal should have been lodged by 10 March 2020 in accordance with the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). As the Notice of Appeal was lodged on 12 March 2020, the appellant requires an extension of time. No explanation was provided for the delay of two days other than the appellant stating that he "was not aware that time ran from an oral decision".
2. Given the minor delay involved and lack of any apparent prejudice caused to the respondent, we have decided to extend the time for the filing of the appeal.

The Appeal

1. The grounds of appeal specified in the Notice of Appeal contend: 1. The Tribunal was wrong because the appellant had "overwhelming evidence that the vehicle's engine did not fail because of their workmanship"; 2. The decision was wrong because they had two experts present when the engine was stripped down at the Parramatta Motor Group Jeep dealership (the Jeep dealership). They confirmed that the engine failed because of a faulty computer and not due to their workmanship; 3. The decision was wrong because the respondent has already disposed of the faulty engine which was critical to their case which meant that they could not get an expert report ready to explain why the engine failed; and 4. The Tribunal did not want them to return with an expert report from the mechanics present at the Jeep dealership as he did not want to waste any more time with another hearing.
2. The appellant stated that it now has a report available from a mechanical engineer who was present when they visited the Jeep dealership. The report was said to be unavailable at the time of the hearing because the engineer was on leave.
3. The appellant claimed that the Tribunal erred in placing weight on a report for the respondent prepared by the Jeep dealership dated 13 September 2019 (the Jeep report) and because the appellant did not have access to the engine, it could not get its own report. Also, the appellant submitted that no report was provided on its behalf to the Tribunal because it formed the view that the Jeep report would not be enough to support the respondent's case.
4. The appellant contended that the Tribunal Member did not understand mechanical issues and was wrong in finding that it was the appellant's fault and that it was its workmanship that caused the engine to fail.

Reply to Appeal

1. The respondent contended that the Jeep report proved that the vehicle was unable to start. The Jeep report evidenced broken pistons inside the engine requiring the removal of the cylinder head. Further, the Jeep report recorded that diagnostic tests found the Engine Control Unit (ECU) was not programmable because it was already programmed and therefore not a new unit as the respondent had been told by the appellant.
2. The respondent relied upon the finding of the Tribunal allowing $1017 for the cost of the Jeep report. The respondent also supported the Tribunal's finding that the "quote" of $10,000 by GMS Spares Pty Ltd dated 26 September 2019 (the GSM quote) was the only evidence for the cost of the replacement of the engine. Having regard to that quote the Tribunal awarded the respondent $8,423 by allowing an offset of $560 owing by the respondent under his "original agreement" with the appellant.

Consideration

1. In effect, the appellant has raised three issues in the appeal. The first is that the appellant had "no opportunity to prove the engine failed due to other issues other than poor workmanship". The second is that the appellant now has evidence from "the mechanics and engineers that were present at the time we had visited the jeep dealership to look at the damages ..." The third is that the Tribunal erred in placing weight on the Jeep report. Part of that ground is that the Tribunal did not understand mechanical issues.
2. We have first considered the evidence on which the appellant now seeks to rely and whether the appellant was deprived of the opportunity of obtaining that evidence prior to the hearing.
3. The only evidence from the appellant in the form of a purported expert report which was made available to us on the appeal was a report by a Mr Patrick Karam, who is not related to the appellant's representative Mr Marcus Karam. Mr Karam described himself as a "licenced [sic] mechanic" with a motor vehicle tradesperson certificate and a motor vehicle repairers licence with over 25 years experience in the automotive engineering trade.
4. We have several reservations with respect to Mr Karam's expert report.
5. First, the report is unsigned and undated and the date of the inspection is not identified.
6. Second, inexplicably and unhelpfully, the report does not refer to the Jeep report and does not directly engage with its findings and comments, despite apparently being prepared after that Jeep report was relied upon at the Tribunal hearing. Even if Mr Karam's report had been before the Tribunal, it would have been of limited probative value, given its failure to engage with the content of the Jeep report.
7. Third, the grounds of appeal refer to there being two experts present at the time of inspection of the vehicle at the Jeep dealership. The only "expert" who has prepared a report as far as we are aware is Mr Patrick Karam. No explanation has been provided for the lack of an expert report from the other expert who was present at the inspection.
8. Fourth, there are three photographs in Mr Karam's report. Only one is said to show a part of the respondent's vehicle, namely a "broken valve". The report simply says that the valve which is manufactured by Jeep is hollow and "is a weak point of this engine." Mr Karam then commented that "there was no way at that time to test the strength of the valves" but he told the respondent that "if needed we could have the material of the valve tested." This is not, in our view, persuasive evidence that the Tribunal erred in placing weight on the report provided by the respondent.
9. Fifth, the appellant submitted that it was unfair that the respondent "had disposed of the engine and evidence and did not make it readily available for us to have an expert report carried out on this. This made it very hard for us to prove our point that damages were not caused by team k kustoms." This assertion does not sit easily with the fact that the expert report was supposedly based on Mr Karam's inspection of the engine at the time it was at the Jeep dealership (and on which the Jeep report was also based) and not after the replacement of the engine had occurred. Also, it is apparent by the photograph and description of the broken valve that the appellant could have had that tested if it was relevant to Mr Karam's expert opinion and irrespective of whether the respondent later disposed of the engine.
10. Sixth, the assertion that the expert report of Mr Karam was unavailable as he was on leave does not explain why the report could not have been prepared shortly after the inspection and in the months before the hearing. It could only explain that Mr Karam may have been unavailable to give evidence at the hearing. It does not explain why the report was not served before the hearing or provided to the Tribunal with a request that it be relied upon in the absence of the author as he was on leave. Further, it does not explain why the other unnamed "expert" present at the inspection with Mr Karam did not prepare a report or was not available to give evidence before the Tribunal if Mr Karam was then on leave.
11. Seventh, contrary to the position advanced by the appellant referred to above, the appellant also submitted that it made a deliberate decision not to adduce expert evidence before the Tribunal because it formed the view that the Jeep report relied upon by the respondent would not be enough to support the respondent's case.
12. Overall, we are not satisfied that the appellant lacked an opportunity to prove the engine failed due to other issues other than poor workmanship. Given that Mr Karam's inspection was carried out at the Jeep dealership some months prior to the hearing, it had ample opportunity to so. Further, we are not satisfied that Mr Karam's report is new evidence in the sense required by cl 12 of Schedule 4 of the NCAT Act. It was reasonably available at the time of the hearing. Finally, even if the report had been before the Tribunal, we do not consider that it would have constituted persuasive evidence in defence of the respondent's case.
13. In relation to the claim that the Tribunal erred in relying on the Jeep report, the appellant contended that the Tribunal erred in its decision due to it not understanding mechanical issues. We do not accept that assertion. However, even if we were to accept it, this underscores why it was imperative for the appellant to have provided relevant and cogent expert evidence in support of its case to the Tribunal. The role of the Tribunal is to hear and evaluate evidence, not substitute its own opinion or understanding for evidence. A party is obliged to assist the Tribunal in reaching a decision by adducing all relevant evidence, including any expert evidence. As we have set out above, procedural directions were made for the exchange of expert evidence and the appellant gave no proper explanation for failing to comply with those directions.
14. Further, for us to have properly considered whether the Tribunal erred in relying on the Jeep report, it was incumbent on the appellant - as directed by the Appeal Panel on two occasions prior to the hearing of the appeal - to provide a transcript of the sound recording of the hearing and the oral reasons delivered by the Tribunal on 11 February 2020. The first direction for the appellant to do so was made by the Tribunal on 26 March 2020. The appellant failed to do so, causing the matter to be adjourned on 9 June 2020. A further order of the Tribunal on 18 June 2020 directed the appellant to again provide the transcript of the sound recording and Tribunal's oral reasons by 17 July 2020 and fixed the hearing of the appeal for 27 July 2020.
15. At the commencement of the hearing of the appeal at 10:15 am on 27 July 2020, we had not received any transcript of the hearing or the Tribunal's oral reasons despite the appellant having asserted to us that "everything was posted - late last month". The respondent informed us that he too had not received any transcript from the appellant. The respondent also confirmed that the Reply to Appeal contained his correct email address for the service of documents.
16. We therefore gave the appellant the opportunity to locate evidence of that material being sent to the Registry. When that was not possible because the appellant's mother - who apparently posted the material - was at the dentist and unavailable to assist the appellant's representative, we adjourned the hearing until later that day to enable the appellant to locate the transcript of the hearing and the Tribunal's oral reasons and forward them to us and the respondent.
17. When we received this material, it transpired that the transcript that the appellant provided from the hearing was no more than a summary and paraphrase of a selection of parts of the hearing and not a verbatim transcript of the hearing or the oral reasons given by the Tribunal. It appears to be a series of extracts of select exchanges between Mr Marcus Karam on behalf of the appellant and the Member, followed by a submission as to why the Tribunal was wrong. It was not a full record of the hearing or the Tribunal's oral reasons. We cannot ascertain from the document provided by the appellant any support for the appellant's assertion that the Tribunal lacked an understanding sufficient to deal with the mechanical issues relevant to its decision. Further, the extracts provided do not support the appellant's explanation as to why it was unable to rely upon any expert evidence.
18. In our view, for the reasons we have set out above, the appellant was not deprived of the opportunity to obtain expert evidence. It could have provided an expert report to the Tribunal, but chose not to do so. In those circumstances, based on the evidence that was before the Tribunal, it was both open to the Tribunal and reasonable for it to have preferred the evidence of the respondent to that of the appellant. Further, we are not satisfied that the new evidence on which the appellant now seeks to rely was not reasonably available at the time of the hearing, or that it would have been of such probative value that the Tribunal was likely to have reached a different and more favourable result for the appellant if that material had been before the Tribunal.
19. We are not satisfied that any questions of law arise on the appeal. Nor are we satisfied that the appellant may have suffered a substantial miscarriage of justice for any one of the reasons set out in cl 12 of Schedule 4 of the NCAT Act.

Conclusion

1. For the above reasons, we have refused the appellant leave to appeal and dismiss the appeal. It follows that the stay order should be lifted.

Orders

1. We make the following orders: 1. The stay order made on 26 March 2020 is lifted. 2. Time for the filing of the Notice of Appeal is extended to 12 March 2020. 3. Leave to appeal is refused. 4. 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: 11 November 2020