White v Carlton Tow Bars Pty Ltd

NCAT Appeal Panel|2015-02-10

Introduction

Mr White has appealed against a decision of the Consumer and Commercial Division of the Tribunal dismissing his application against Carlton Tow Bars Pty Ltd. Mr White alleged that Carlton Tow Bars provided the service of installing a Hayman Reece 5 wheel hitch to his vehicle without "due care and skill." In addition, Mr White claimed that the wheel hitch was faulty. As a result of the faulty wheel hitch or the lack of care and skill in installing it, Mr White said that many of his vehicle's electronic systems malfunctioned and it had to be repaired.
At the Appeal Panel hearing Mr White said that since the Tribunal hearing he has come to the view that Carlton Tow Bars should not have installed the wheel hitch to his vehicle at all. That is because in order to tow a caravan, his vehicle, a Holden Colorado, requires the General Motors Holden "SPS" software. Because the manufacturers of the wheel hitch, Hayman Reese Pty Ltd, could not supply the SPS software or comparable software, the wheel hitch should not have been installed.
This claim was not put to Carlton Tow Bars and the Tribunal did not determine it. If Carlton Tow Bars should not have installed the wheel hitch at all, there is no basis for claiming that it was installed without "due care and skill". Mr White cannot change his case on appeal.
Despite the change in Mr White's case, we will address the issues he raised in relation to the original claims that the wheel hitch was faulty or that it had been installed without due care and skill.

Grounds of Appeal

Mr White has appealed on questions of law and has asked for leave to appeal on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
It is not surprising, since Mr White is self-represented, that he has not articulated the grounds of appeal in a way that clearly identifies a question of law. While the Appeal Panel must remain impartial, we should attempt to ensure that the real issues in dispute are determined justly, quickly and cheaply: NCAT Act, s 36(1). In this case that involves considering whether the Consumer and Commercial Division made any error of law which would require that the appeal be allowed: Barghouthi v Transfield Pty Ltd [2002] FCA 666 at [10]; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. We must also determine whether leave should be granted to appeal on grounds other than a question of law.
In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 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).
Based on Mr White's written and oral submissions we have divided his points into three categories: potential questions of law, grounds on which leave to appeal is sought and grounds which do not fall within either of those categories. We note that while we had the Tribunal's file including the evidence relied on in the Tribunal proceedings, Mr White did not produce a transcript of the proceedings. In the absence of a transcript we cannot give any weight to accounts Mr White gave to the Appeal Panel of submissions he made to the Tribunal. It is clear from NCAT's Guideline No 1 that a party who seeks to rely on transcript should provide relevant excerpts to the Appeal Panel and the other parties before the hearing.

Causes of action

The Tribunal did not expressly identify the causes of action on which Mr White relied. In our view, the causes of action on which Mr White was entitled to rely were: breach of contract; and breach of statutory consumer guarantees as contained in the Australian Consumer Law (the ACL): Competition and Consumer Act 2010 (Cth), Schedule 2.
Clause 60 of the ACL provides that: If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
Failure to identify the causes of action is not necessarily an error of law unless the Tribunal applied the incorrect legal test to the facts. The Tribunal wrote that "[F]or the applicant to be successful in this claim he must satisfy the Tribunal on the balance of probabilities that the goods installed in his vehicle were not of acceptable quality and/or were not fit for purpose and that the installation of the goods was not done with due care and skill in a proper and workmanlike manner." As "due care and skill" was one of the tests the Tribunal articulated and applied, it has not made an error of law by failing to identify the provision from which that test is derived. If it made findings on the basis of other tests (such as that the goods were not installed in a proper and workmanlike manner) which were not applicable, that is not an error which justifies setting aside the decision. While the Tribunal may have asked itself a wrong question, it also asked itself the right question, that is whether "due care and skill" had been exercised in the installation of the Hayman Reece 5 wheel hitch.
Mr White also claimed that Carlton Tow Bars was liable for supplying faulty goods. The Tribunal was not satisfied that "the goods supplied by the respondent are faulty." Any liability for fault with the goods would lie with the manufacturer, not with Carlton Tow Bars who merely installed the goods. As the manufacturer was not a party to the proceedings, the Tribunal should not have made a finding in relation to a claim against the manufacturer.
To succeed, Mr White had to prove either that at least one term of the contract had been breached or that the services had not been provided with due care and skill as provided in clause 60 of the ACL.

Against the weight of evidence?

The Appeal Panel may give leave to appeal on the basis that Mr White may have suffered a substantial miscarriage of justice because the decision was "against the weight of evidence". The evidence on which Mr White relied to make out this ground of appeal was: 1. the Manufacturer's Instruction manual for the Installation and Operation of electronic trailer brake control which included a test drive and pull test; 2. an email from Emerald Holden Service Department to Mr White dated 25 September 2013 which stated, in part, that: 3. The issue of the trailer wiring does appear to be a separate issue but the electronics on these new vehicles is very much inter-related. We will contact you tomorrow as to what we believe the cause of the problem after further discussions with the technicians. 4. an email from Emerald Holden Service Department to Mr White dated 26 September 2013 which stated, in part, that: 5. Our research indicates that the 4WD light concern is related to the incorrect wiring of the trailer. The ESC circuit is inter- related with ABS, trailer wiring module and EBD. 6. a tax invoice from Emerald Motors Pty Ltd dated 13 September 2013 for repairs which stated in part, that: 7. Trailer wiring harness and electric brakes should be wired up in the trailer interface module, need to fit trailer harness and correct all the wiring.
On 4 December 2013 Emerald Holden emailed Mr White again: The fellow who rang us from the company that fitted the tow bar advised that they had never fitted a GM Holden trailer module with any previous tow bars. We hadn't either until the new Colorado was released. Bearing in mind once we rewired the harness to include the trailer module all lights worked fine and the warning lights on the dash related to the tow bar wiring were eliminated.
Against this evidence, there was evidence from the Product Manager of the manufacturer, Hayman Reese, stating that: Information provided in the letter from Peter White, vehicle owner, regarding a concern with the various warning lights coming on in his 2012 Holden Colorado, fitted with the TrMas Trailer Wiring harness is unlikely to be the case. Trailer wiring harness 100819-WL and ECU designed for TriMas used on 2012 Holden Colorado does not interface with the vehicle electronics like the vehicle manufacturers trailer wiring harness, so no trailer on the signal is triggered to the vehicle ECU. . "
Apart from the Manufacturer's Instruction Manual, the Tribunal referred to the evidence Mr White listed but was not satisfied "on the basis of a number of emails and a tax invoice that the goods and installation of the goods by the respondent were the cause or sole cause of the applicant's problems."
According to Mr White, the Manufacturer's Instruction Manual gives implicit instructions to the installer to take the vehicle for a test drive with a comparable 5th wheel caravan to test their installation under real driving conditions. Without such a test drive, Mr White said that Carlton Tow Bars had no idea whether the trailer system they had installed was compatible with his vehicle. In relation to the 'pull test' Mr White says that Carlton Tow Bars did not conduct this test because his caravan was not available, but that is no excuse.
Failure to test drive or carry out certain tests does not mean that the installer provided the services "without due care and skill". While the tests may have revealed a problem, the failure to test, of itself, is not evidence of lack of care or skill in relation to the installation. The Tribunal's failure to refer to the Manufacturer's Instruction Manual does not satisfy us that its finding was against the weight of evidence.
In relation to the emails from Emerald Holden, the Tribunal concluded that: The emails do not comply with the NCAT Procedural Direction 3 "Expert Witnesses" issued by the President on February 2014. The Tribunal may rely on evidence from expert witnesses to reach a conclusion about a technical matter or area of specialised knowledge that is relevant to an issue to be determined in the proceedings. The Tribunal is not able to determine from the emails the qualifications of the writer, the facts and assumptions of fact on which the opinion in the emails are based, and the expert's reasons for the opinion expressed.
The Procedural Direction applies to "any evidence given by an expert witness in the Tribunal." Under s 26(4) of the NCAT Act, the Tribunal and the parties must comply with any applicable procedural direction. Procedural Direction No 3 states, in part, that: An expert's report must (in the body of the report or in an annexure to it) include the following: The expert's qualifications as an expert on the issue the subject of the report; The facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed); The expert's reasons for each opinion expressed; If applicable, that a particular issue falls outside the expert's field of expertise.
However, the Tribunal may excuse an expert witness or any other person from complying with this Procedural Direction before or after the time for compliance.
The Tribunal did not reject Mr White's evidence outright on the basis that it did not comply with the Procedural Direction. Rather, we understand the Tribunal to have given that evidence less weight than it might otherwise have given it. The strongest evidence in support of Mr White's case was the email from Emerald Motors dated 26 September 2013 that, "[O]ur research indicates that the 4WD light concern is related to the incorrect wiring of the trailer." Against that, there is evidence from the manufacturer that the wiring harness does not interface with the vehicle's electronics. In view of that apparently conflicting evidence and in the absence of any other cogent evidence in support of Mr White's case, the Tribunal was not satisfied that Mr White had proved that the Carlton Tow Bars had acted without due care and skill when installing the wheel hitch. That was a finding that was open to the Tribunal. It was not "against the weight of evidence". Leave to appeal on that ground is refused.

Significant new evidence

The Appeal Panel may give leave to appeal on the basis that Mr White may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The significant 'new' evidence was: 1. A letter dated 28 February 2014 from Mr White to the Tribunal and Carlton Tow Bars which Mr White filed after the date he had been directed to file his evidence. The letter attached photographs of the "original isolator" before new ones were fitted. Mr White pointed out a "darkened worn area". Mr White noted that new isolators were supplied and fitted and "no NCAT action is needed at this time". Mr White's final comment in the letter is, "One would have to question just how reliable is Mr Jason Tresider's Product Manager Towing for Hayman Reese, if this is an example of their product design and pre-market testing for Australian conditions." 2. A document headed "Active safety features and demonstration" (with diagrams).
The Tribunal did not refer to the 28 February 2014 letter in its reasons but does note that Mr White filed "volumes of submissions and evidence in support of the claim". If it was not filed in time, it may be that the Tribunal did not take it into account.
In any case, the letter is not significant 'new' evidence which was not available at that time of the hearing. It was not significant because it merely questioned the credibility of the evidence from Hayman Reese's Product Manager on the basis of Mr White's opinion about the design and testing of the "original isolator". It was not new because it was available at the time of the hearing but may not have been taken into account because it was filed late. The relevance of the second document is unclear. In any case, no evidence was led and no submissions were made to suggest that this evidence was not available at the time of the hearing. For these reasons we do not grant leave to appeal on 'other grounds'.

Grounds of Appeal which are neither questions of law nor cause a substantial miscarriage of justice

The points which Mr White made which fall into this category are that the Tribunal: 1. assumed that Sutherland was the nearest town to Birdsville rather than a suburb of Sydney; 2. stated that the amount of money he was claiming was $1938.29 instead of $1964.52; 3. referred to the date on which he took delivery of his new caravan as 'early May' when in fact it was 13 May 2013; 4. was unaware of other proceedings in which Mr White had been a party and which were settled out of court; and 5. speculated that a possible explanation for the problems Mr White had experienced was the cracked crank case ventilation pipe.
Mr White submitted that the mistakes he says the Tribunal made may undermine the public's confidence in the correctness of the ultimate decision. Apart from the final point, we do not consider any of the minor matters referred to above could have led the Tribunal into error or caused Mr White a substantial miscarriage of justice. They do not justify the Tribunal's decision being set aside. We agree that the speculation that the cracked crank case was a possible cause of Mr White's problems was irrelevant. But the Tribunal's role was not to make a definitive finding as to the cause of the problems - its role was to determine whether Mr White had proved that Carlton Tow Bars had not exercised due care and skill when installing the wheel hitch. On the basis of all the relevant and probative evidence it was not satisfied that that was the case. We can detect no error in relation to that finding.

Orders 1. The appellant's application for leave to appeal is refused. 2. 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: 10 February 2015

Australian Consumer Law (the ACL): Competition and Consumer Act 2010(Cth)

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