Xu v Ling

Xu v Ling - [2022] NSWCATAP 266 - NSWCATAP 2022 case summary — Zoe

[3]

Scope and nature of internal appeals

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.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 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.
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).
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 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.
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).
In Collins, 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.

[8]

Appellant's submission.

The initial submissions began by indicating the finding as to liability, i.e. that the appellant breached provisions in the Home Building Act 1989 (the HBA), was not contested: only some of the findings as to quantum were challenged.
It was contended there was a failure to draw a Jones v Dunkel inference in relation to the failure to call the appellant's former worker, Lijun He, and that it was an error to accept his evidence (at [6]) as confirming the opinion of the respondent's expert (Mr Xue).
Secondly, it was suggested it was an error to award quantum in relation to three aspects of the work, namely: 1. a joinery cover for the ventilator in the kitchen, 2. the installation of plasterboard ceiling, and 3. incomplete window trim, without first making "a finding of fact of whether the work breached the Act".
Thirdly, it was said it was an error of law to accept Mr He's evidence as it was not in the form of a statutory declaration or affidavit and that the appellant was denied procedural fairness as his evidence was not tested by cross-examination.
Fourthly, it was said that there was an error of law in that hearsay evidence was accepted. This related to the question of whether the carpet was replaced by the appellant.
In conclusion, it was suggested the amount awarded should be reduced to $34,843.28.
Submissions in reply contended that there "is no evidence on record" that Mr He was not required for cross-examination. Objection was taken to the affidavit of Mr He dated 27 July 2022 that was submitted by the respondent in this appeal. It was contended that Mr He's statement, even if accepted as evidence, is not an expert opinion and that no weight should be placed on it.
It was also submitted that any failure of Mr Hall to respond to the evidence of Mr Xue did not mean his evidence should be accepted. Further, that it was inappropriate to make a finding of fact based on hearsay evidence in circumstances where the respondent bore the onus of proof and did not prove her case on her own evidence.
After noting that costs would follow the event in relation to the appeal, any request by the respondent for an order for costs in respect of the first instance proceedings was opposed.
When provided with an opportunity to make oral submissions at the hearing of the appeal, reliance was placed on the written submissions. The only additional matter was an indication that the claim in relation to the carpet, in the appellant's written submissions at [12], was not pressed. That was what has been referred to as Issue 2. After the respondent's oral submissions, the appellant's solicitor did not wish to make any additional submission.

[9]

Respondent's submissions

The submissions of the respondent expressed the view that Mr He was not required for cross-examination and that a Jones v Dunkel inference was only warranted where a party was required to explain of contradict a matter in issue. After referring to Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [51], it was suggested that the appellant had not specified what it was that Mr He's attendance was required to explain or contradict.
On the second point, it was submitted that there was a finding on liability by reason of the finding that the appellant was carrying out work beyond the scope his painter and decorating licence and was thus in breach of s 12 of the HBA and was thereby in breach of s 18B(1)(c). Further, that the appellant's expert (Mr Hall) had not provided evidence on the three aspects of the work upon which the appellant's complaint was based, despite being instructed to reply to Mr Xue's report. It was noted that Precision Plastics Pty Ltd v Demir [1975] HCA 27 (Precision) provided support for the proposition that evidence which is not inherently incredible, and which is not challenged, ought to be accepted.
As to Mr He's statement, the response was that it was in a permitted form, was signed and witnessed, and was not challenged.
Finally, as to the acceptance of hearsay evidence, it was noted that the Tribunal was not bound by the rules of evidence (s 38(2) of the NCAT Act) and that the appellant had failed to lead evidence to the contrary of what was found in relation to the carpet.
Oral submissions for the respondent covered a limited number of points. First, that the mobile telephone number of Mr He was in his statement. However, that statement is not before the Tribunal. Secondly, that it was not in the reasons that the was a request to cross-examine Mr He. Thirdly, in response to the appellant's submissions in reply, Mr He's statement was not expert evidence but was lay evidence that did not more than recall the directions he received. Thirdly, it was noted that the Notice of Appeal suggested that liability was in issue but the submissions in reply, at [4], indicated that the appellant was only challenging quantum in this appeal.

[11]

Issue 1

The first ground of appeal was said to be: "Applying a Jones v Dunkel inference on matters in which the Applicant's expert did not address to in its expert report".
In Jones v Dunkel [1959] HCA 8 the wife of a deceased driver sought damages, claiming that her husband's death was caused by the driver of the other vehicle involved in the collision who made a statement to the Police but was not called to give evidence.
The High Court held that the unexplained failure to call a witness who could reasonably be expected to shed light on the facts in issue enables an inference to be drawn that the evidence of that uncalled witness would not have assisted that party.
Three points need to be noted. First, there must be an unexplained failure to call a witness. Secondly, that it may reasonably be expected that the uncalled witness could be expected to shed light on the issues. Thirdly, that the inference is only that the party's failure to call that witness would not have assisted the case of that party.
The inference is not that the evidence of the uncalled witness would have been adverse to the party failing to call the witness, and is not that such evidence would have assisted the case of the other party: Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582, [1966] NSWR 259. The nature of the inference was recently restated in Jagatramka v Wollongong Coal Limited [2021] NSWCA 61 at [49] where, in a joint judgement, Bathurst CJ, Bell P and White JA noted that: "The failure cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably."
There is nothing in the reasons now challenged that refers to Jones v Dunkel. That is a decision which can apply when there is no evidence from a witness whose may be reasonably expected to be called and whose absence was not reasonably explained. Any failure of the builder's expert to deal with a matter in response to evidence from the owner's expert does not create a situation where Jones v Dunkel applies. Accordingly, this ground is rejected.

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (1)