White v Alto Artarmon Pty Ltd

Grounds of Appeal

1. This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the Act). The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b): 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).
2. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71] …[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result … it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
3. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
4. 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: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
5. The Notice of Appeal lodged on 20 March 2017 identified 11 grounds of appeal. On 17 May 2017 Mr White lodged with the Tribunal a further Notice of Appeal which repeated the orders sought, and provided further detail in support of the stated grounds of appeal. That Notice of Appeal appeared to raise a further ground not identified in the original notice of appeal, being a failure to correctly identify the basis of the contract. Alto addressed that ground in its Reply to Appeal submissions, and on the hearing of the appeal consented to leave being granted to amend the grounds of appeal to raise that ground. Leave was granted by consent.
6. The grounds of appeal as amended now number 14, and are specified in detail over several pages. While Mr White ticked the box on the Tribunal form to indicate he was not seeking leave to appeal, he outlined his reasons why in his view the decision was not fair and equitable, and was against the weight of evidence, and that significant new evidence is now available that was not reasonably available at the time of the hearing.
7. As we understand the written grounds of appeal, and with the benefit of some clarification during the hearing of the appeal, the grounds on which Mr White is challenging the determination are as follows: 1. the hearing was not conducted fairly because: 1. he was not asked whether he wished to cross-examine the respondents despite being told at the beginning of the hearing that he would have that opportunity; 2. his expert was medically sick during the January period allocated by the Tribunal for provision of an expert report and so was not able to inspect the vehicle; 3. the Member failed to take into account in her conduct of the hearing evidence as to his medical condition, which causes him to "freeze" and not communicate or think effectively; and 4. the Member pressed him to consider a settlement offer in conciliation; 1. the Member failed to consider his claimed economic losses; 2. the Member should have given more weight to his evidence that at all times he had driven the vehicle according to the owner's manual, and should not have accepted the evidence of Alto and found that Alto had acted within a reasonable time and rendered its services with due care and skill; and 3. the Member failed to correctly identify the basis of the contract.
8. Mr White's reasons why he should be granted leave to appeal were: 1. Alto did not provide him as ordered at the directions hearing with the necessary evidence on the invoices on which his expert needed to rely, making the report incomplete and the Tribunal determination incorrect; 2. An opportunity for cross-examination was promised at the beginning and then denied; 3. The Tribunal did not ask his expert why he did not do an inspection in the overall context; 4. The determination relied on his expert's report for diagnosis which was not the purpose of the report; and 5. The respondent has not diagnosed and fixed the vehicle as per the contract requirements in a reasonable time.
9. Mr White raises issues with how the hearing was conducted, in particular whether he was deprived of an opportunity to cross-examine the respondents' witnesses. That could raise a ground of possible denial of procedural fairness, which would be a question of law. His challenge to the way in which the Member framed the questions for determination, in particular his complaint that she did not consider the terms of the contract or Alto's failure to diagnose the problem with the vehicle, may raise an issue as to whether there was an error in identifying and addressing the relevant legal principles, or a failure to have regard to a relevant consideration. That would also raise a question of law.
10. Mr White's further complaints about the findings made by the Member, to the extent not covered in the above consideration, would appear to raise a submission that the decision was not fair and equitable and was against the weight of the evidence. Mr White is also seeking to be able to rely on new evidence in the form of expert reports from Mr Gregory Organ, Diesel Green (Aust) Pty Ltd, dated 14 March 2017 and 12 May 2017, which rely on the information as to repair and diagnostic procedures in the invoices provided by Alto, and which provide evidence of a new behavioural problem in the vehicle. For Mr White to succeed on those grounds, leave to appeal would need to be granted.

Reply to Appeal

1. Alto lodged a Reply to Appeal on 4 April 2017, supporting the Tribunal Member's determination, and providing detailed responses to each of the matters raised in the Grounds of Appeal and request for leave to appeal. Alto provided written submissions in reply on 5 June 2017, which included a copy of the documents provided at first instance including a chronology, a copy of a statement by Andrew Crompton (Service Manager) dated 10 February 2017, copies of invoices and other documents.
2. No Reply to Appeal was received from Mitsubishi. The Appeal Panel file confirms that Mitsubishi was notified of the Directions made on 6 April 2017, which included the timetable for provision of documents, and was notified of the hearing date.

The Appeal Hearing

1. At the hearing of the appeal Mr White appeared in person, and Alto was represented by Mr Ralph Fitzgerald. There was no appearance on behalf of Mitsubishi, and no communication to the Tribunal to explain its non-appearance. After discussing the matter with the parties present, and confirming that Mr White's appeal is focussed on the Tribunal Member's findings and determination relating to Alto, the Appeal Panel proceeded with the hearing. Mr White and Mr Fitzgerald made oral submissions.
2. Mr White clarified that he is seeking an order that invoices totalling $16,917.90 be withdrawn, and orders that the respondent pay for a professional inspection of, and provide remedial repairs to, the vehicle, and pay economic losses of $27,000. His claim for withdrawal of an invoice for $3,000 relating to an insurance excess for damage to a courtesy car was not pressed.

Was there a denial of procedural fairness?

1. Section 38(2) of the Act provides that "[t]he Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
2. Section 38(5) of the Act provides: The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. Mr White contends that the Member was required to manage the proceedings having regard to his medical condition, and that the way that the hearing had been conducted had impacted on the effectiveness of his communication.
4. In his statutory declaration of 23 January 2017, at para 52, Mr White states that he was in hospital between July to mid-August 2016; and at para 53, that the loss of income and lack of mobility contributed to his [specified] medical condition, which impacted him including with an onset of anxiety. The statutory declaration does not include information about any ongoing issues.
5. The sound recording confirms that the Member was aware of the content of Mr White's statutory declaration, and she took his evidence-in-chief by reference to the matters included in that document. There is no indication in the sound recording that Mr White informed the Member of any particular condition that might impact on his ability to participate fully and appropriately in the Tribunal hearing. Mr White accepted at the appeal hearing that he had not told the Member he was having any difficulties. The sound recording confirms that the Member outlined the issues before her for determination, and at the beginning of the hearing questioned Mr White in order to clarify the grounds of his application by reference to the legal issues, stating that he had the onus of establishing his case. There is no indication from the sound recording that Mr White was impeded in his capacity to engage with the Member during that process, or during the course of the hearing, or that the proceedings were conducted in an "aggressive" manner as asserted by Mr White. The Member's interventions during the course of the evidence and submissions were appropriate in retaining control of the hearing.
6. In his grounds of appeal Mr White takes issue with the conciliation process undertaken at the end of the hearing. The sound recording indicates that the Member identified when the formal hearing had concluded, and that she then offered to the parties an opportunity to reach a negotiated settlement of the matters in dispute. The Member asked the parties whether they wished to conciliate, having explained the process, and that it was not part of the hearing and that no further evidence could be given. The parties consented to that course. During the conciliation process, which took place in the hearing room, the Member urged the parties to reach a negotiated settlement if they could, reminding them that they could reach a settlement without detracting from their respective positions. She asked Mr White if he would consider an offer made by the respondents, or wished to make a counter offer. Mr White was not prepared to accept an offer made by the respondents, made a counter offer which was not accepted, and the Member ended the conciliation.
7. The Appeal Panel has recently considered in Lee v Imad [2017] NSWCATAP 128 the provisions of Procedural Direction 3 of the Consumer and Commercial Division of the Tribunal, dealing with the procedure to be applied when the same Member assists in conciliation of a dispute and determines the matter at hearing. At paragraphs [45] -[47] the Appeal Panel notes that while it is preferable that conciliation occur before the Tribunal has commenced to hear the evidence, there may be circumstances where a Member part-heard in a matter would then act as conciliator of the dispute. In the circumstances of this matter, the Member complied with the Procedural Direction: she explained that the hearing process was finished; she explained the conciliation process; the parties consented; and the Member did not express any opinion about the strength or weakness or any party's case, but rather re-stated the legal issues that would need to be determined. There is no indication from the sound recording that Mr White was under any particular disadvantage in his participation in the discussions in the conciliation process.
8. Mr White takes particular issue with what he contends is a denial of an opportunity to cross-examine the respondents' witnesses. The authorities acknowledge that the right to cross-examination is important, and that restricting it can constitute a breach of procedural fairness. In Gallo v Duflou [2014] NSWCATAP 115 the Appeal Panel held that failure to allow a party to cross-examine was a "practical injustice" which prevented the appellant from having a reasonable opportunity to be heard. Where a party is self-represented, a court or tribunal has a common law duty to ensure that that party understands the relevant procedures of the court or tribunal, including those available for cross-examination: Renda v Wu [2016] NSWCATAP 238 at [62] (referring to Lee v Cha [2008] NSWCA 13, Basten JA at [48]-[49]; Norfeld Pty Ltd v Jones trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992, Hamill J at [92]-[96]; Gallo v Duflou [2014] NSWCATAP 115 at [32]-[36]).
9. The sound recording confirms that, at the beginning of the hearing, the Member advised the parties that they would have an opportunity to cross-examine each other. Mr White's submission is that he should have been invited by the Member to do so. Had he been invited to cross-examine, he would have questioned Alto's witnesses to challenge their assertion that the work had been done in a skilful manner, and avoided some of the Member's misunderstandings. Alto's witnesses were Mr Crompton and Mr Houghton, and Mitsubishi's witness was Mr Cosgrove. In his grounds of appeal Mr White identified some parts of the evidence where he submits cross-examination might have made a difference, including Mr Cosgrove's reference to the possibility that it was the age of the vehicle "or some other component" in addition to the way that vehicle had been driven that may have caused the fault; and Mr Crompton's evidence that Alto had not been aware until October 2016 that the vehicle was used for Uber driving.
10. Alto submits that there was no denial of procedural fairness, as Mr White did not seek to cross examine any witness at the hearing and was not prevented from doing so by the Member.
11. The sound recording confirms that Mr White was not expressly asked if he had any questions in cross-examination after the evidence of Mr Cosgrove and Mr Crompton was given. Mr White's expert, Mr Organ, was cross-examined. During the hearing Mr White stated that he would like to ask a question of the Tribunal Member, and of Mr Organ, and was allowed to do so. The Member asked Mr White on several occasions whether he had anything else to say; and Mr White confirmed before the hearing concluded that he had had a full opportunity to say everything he needed to say about the dispute. The Appeal Panel is satisfied that Mr White was advised by the Member of his right to cross-examine the other parties' witnesses, and was provided with several opportunities in which he could have stated that he wished to do so. The issue is whether the Member should, as contended by Mr White, specifically ask him whether he wished to cross-examine the respondents' witnesses.
12. It is clear from the sound recording that, while the Member did not expressly ask Mr White whether he had any questions for either of the respondents' witnesses, he was not prevented from cross-examining, and was given several opportunities in which he could have done so. As concluded above, the Appeal Panel is not of the opinion, having listened to how Mr White conducted himself in the hearing, and having regard to the evidence before her, that there was any indication to the Tribunal Member that he was at a disadvantage so that he may have needed specific prompting. In those circumstances, while it may have been preferable for the Member to remind all of the parties of their right to cross-examine during the hearing, the Appeal Panel is not satisfied that the Member's failure to invite Mr White to cross-examine the respondents' witnesses denied him a fair opportunity to put his case and test the evidence.
13. If that conclusion is not correct, having regard to the matters which Mr White identified as those on which he would have wanted to cross-examine, the Appeal Panel is not persuaded that the failure resulted in any practical injustice as identified in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1. While Mr Crompton had stated in his statutory declaration that Mr White had not disclosed that he used the vehicle for Uber driving until about October 2016, the Member had Mr White's sworn evidence that he had told Alto that he was an Uber driver when he took the vehicle there in October 2015. The factors that might contribute to issues with the Diesel Particulate Filter (DPF) in the vehicle, including stop/start city driving, were identified in the evidence, including the oral evidence of Mr Organ. The Member's finding that the most likely contribution to the ongoing issues with the vehicle was the age of the vehicle and the way it had been driven as an Uber vehicle was based on her analysis of all the available evidence, which she discussed in detail. It is not clear how any discrepancy as to when Alto knew that Mr White was an Uber driver, which might have been clarified in cross-examination, formed a part of that reasoning. Similarly, given Mr Organ's oral evidence concerning possible factors for issues with the DPF it is not apparent how the absence of cross-examination of Mr Crompton and Mr Gosgrove on their opinions as to the causes would have made a difference to the Member's evaluation of the evidence.
14. There was no denial of procedural fairness and that ground of appeal is not made out.

Whether the Member erred in her identification of the issues

1. Mr White's primary concern is that there was a contract for Alto to diagnose the problem with the DPF in his vehicle and that Alto had failed to do so. In support of the claim that the Member failed to correctly identify the contract, Mr White submitted that he had asked Alto to diagnose the vehicle for a DPF fault that caused a warning light on the dashboard to occur resulting in limp mode which did not clear. He said at the outset he needed flexibility on payments as he relied on the vehicle for income as a part time driver with Uber to pay for this. Mr White submits that the determination does not clearly articulate the basis and terms surrounding the engagement and therefore could not determine whether or not the contract was breached. Mr White contended that the Member erred in considering what the causes of the problems might be, when all that was required to be proved was that the vehicle was not correctly diagnosed or fixed within a reasonable period of time. The focus on what the diagnosis might be was evidence that the vehicle was not diagnosed, and breach of contract flowed because the vehicle was not diagnosed in a reasonable period of time.
2. The difficulty with this contention is that Mr White's application was based on claimed breaches of the consumer guarantees in the ACL, and not on the terms of any particular contract. At the beginning of the hearing the Member clarified with Mr White that his claim against Alto was that it had breached the consumer guarantee by failing to deliver a service with due care and skill and within a reasonable period of time, and that his claim against Mitsubishi was that he had relied on representations made on their website and by their customer relations department in having work carried out by Alto. The Member identified the basis of the Tribunal's jurisdiction as a consumer claim under the Fair Trading Act 1987, and the relevant provisions of the ACL. The Member identified in her reasons that while Mr White had taken the vehicle on numerous occasions to Alto in relation to various issues he was experiencing with the vehicle, the dispute related primarily to the work carried out by Alto in relation to the DPF system. She summarised Mr White's position as being that the respondents had failed to deliver a diagnostic and repair service that they were contracted to do within a reasonable period of time. There is no error shown in how the Member identified the issues for determination.
3. The Member was not satisfied that Mr White had established his claim against either Alto or Mitsubishi. There was, as a consequence, no basis on which she needed to consider the separate heads of loss claimed, including Mr White's claim for economic loss, being his loss of income.
4. No error of law is established.

Whether leave to appeal should be granted

1. Mr White's contention that the decision was not fair and equitable, and was against the weight of evidence, was based on a number of propositions: 1. The evidence in the invoices provided by Alto contained material omissions around additional excessive oil flushing, damage to the engine and consequences around misdiagnosis; 2. His expert was not asked why he had not inspected the vehicle, and the expert could not have been expected to guess or inspect something he did not know about being excessive oil flushes; 3. It was not fair to expect or rely on Mr Organ to provide a diagnosis, and the evidence was that a diagnosis had not been completed as required; 4. Alto's witness Mr Crompton had only been involved from October 2016 whereas the account Service Manager Mr Adam Clarke, who had managed the interaction from the outset for 12 months, and Mr Toby Park, the lead service technician who had conversed with the applicant on numerous occasions, were absent; 5. More weight should have been given to his evidence that at all times he had driven the vehicle according to the manual which states that if the DPF light goes on the vehicle should be driven at over 40km/h for 15-20 minutes for the DPF light to clear, and to his statement that he had no problem during the first 200,000km of driving; and 6. The Member had placed little weight on Mr Organ's evidence without an examination and testing of the vehicle, however asking him to diagnose the vehicle was irrelevant when he had brought the claim to determine whether Alto and Mitsubishi had diagnosed the vehicle.
2. The Member's reasons explain why she placed limited weight on Mr Organ's expert report, which she acknowledged had been prepared with a statement that the Tribunal's expert witness code had been adopted. The Member expressed concerns with Mr Organ's evidence, being that he did not identify the evidence on which he based a statement that it was "common practice" within the automotive industry that unsatisfactory workshop technicians could not rectify the problem satisfactorily; his report advocated for the applicant; his conclusion that Alto and Mitsubishi had a shared responsibility suggested a legal outcome rather than providing expert evidence to assist the Tribunal; and he had not inspected the vehicle and his opinion was based on his expertise and knowledge of this type of vehicle, and he had seen this problem 20 or 30 times. The Member concluded that without an examination and testing of the vehicle, she could place little weight on Mr Organ's opinion, being based on assumption and not fact; and she stated her reasons for accepting the respondents' evidence and concluding that the ongoing issue with the DPF system could be caused by a combination of factors including the age of the vehicle and the way it had been driven when used as an Uber vehicle.
3. There is no error shown in the Member's evaluation of the evidence and in her determination to place little weight on Mr Organ's opinion. She asked Mr Organ why he had not inspected the vehicle: he responded with a general comment about discussions with Mr White, and did not raise the claim now being made that he had been unwell at the time. That was not raised at the hearing by either Mr White or Mr Organ, and there was no application made either before or at the hearing for further time for Mr Organ to properly complete a report. The Member was entitled to place limited weight on an expert opinion as to a fault with a particular vehicle when that opinion was based on experience and assumption rather than an inspection of the vehicle.
4. It is possible that Mr Clarke and Mr Park may have had some relevant evidence to give. However, there is no indication that Mr White sought to have them available at the hearing, for example through obtaining a summons. Mr White contends that the itemised invoices provided by Alto did not provide sufficient information for Mr Organ, contrary to the directions made on 19 December 2016. However, the directions made on that date include only a notation that Alto was to provide an itemised bill, on or before 20 December 2016. There is no indication that if that information was insufficient Mr White or Mr Organ took steps to obtain more detailed information.
5. Mr White disagrees with the Member's findings, in particular that she was not satisfied that Alto had misdiagnosed the issue or that unnecessary work had been done on the vehicle, and her conclusion that she was not satisfied that on each occasion the vehicle was taken to Alto it was not examined and tested by qualified technicians and the work that was performed was not necessary to rectify each of the faults that were determined on each occasion. However, the Member had evidence, including in Mr White's statutory declaration, that Mr White experienced issues with the vehicle other than those relating to the DPF, and she provided her reasons for preferring the evidence of the respondents' witnesses as to the factors behind the ongoing issues with the DPF, over that of Mr Organ. Mr White has not established that the evidence in its totality was so strongly against the conclusion that the Member reached that it could be said that her conclusion was not one that a reasonable decision-maker could reach, so as to be against the weight of evidence.
6. Mr White relies on cl 12(1)(c) of Sch 4 to the NCAT Act, and submits that Mr Organ's new reports dated 14 March 2017 and 12 May 2017 should be admitted as not all the information needed was available at the time he did the original report, and Mr Organ had been unwell and unable to inspect the vehicle at that time.
7. Clause 12(1)(c) requires that the new evidence is significant, and that it was not reasonably available at the time the proceedings below were being heard. That is an objective test, and requires that the evidence be unavailable because no person could reasonably have obtained it; a party's incapacity to procure that evidence is not sufficient: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111; Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11.
8. We are not satisfied that Mr Organ's new reports satisfy that requirement. There is no indication in either of the two new reports that the additional information from Alto and Sydney Diesel Centre (which had examined the DPF on behalf of Alto in November 2015) referred to could not have been obtained in time for the preparation of the report provided at the hearing, or that the inspection of the engine could not have been undertaken at that time, if not by Mr Organ, then by some other qualified person. We further note that there is some substance to Alto's submission that in any event these new reports continue an advocacy position rather than the provision of an impartial expert opinion to assist the Tribunal.
9. Mr White has not established that there was a failure in the way the matter was conducted or decided which deprived him of a chance that was fairly open of achieving a better outcome than occurred, such that there may have been a substantial miscarriage of justice under cl 12(1) of Sch 4 to the NCAT Act. That conclusion means that it is not necessary to consider whether in the exercise of discretion leave to appeal should be granted.

Mitsubishi

1. As noted above, Mitsubishi did not provide a Reply to Appeal or participate in the hearing. In the interests of completeness, the Appeal Panel has considered Mitsubishi's position. Mr White's primary grievance relates to how Alto carried out work on his vehicle. In his grounds of appeal Mr White refers on several occasions to "Alto/Mitsubishi", and he includes Mitsubishi in his claims that there was an obligation to diagnose the problem with the vehicle. However, that is not how his claim was framed at first instance, and it cannot form the basis of an appeal. The claim at first instance was put in terms of representations made on Mitsubishi's website and by its customer service desk, and there was no evidence that Mitsubishi carried out any of the work on the vehicle. The Member considered the evidence relating to that part of the claim against Mitsubishi, and found that she was not satisfied that anything in the representations made would lead her to find that Mitsubishi had engaged in misleading or deceptive conduct.

Conclusion 1. Leave to appeal is refused, and the appeal is dismissed.

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: 02 August 2017