The appellant purchased several leather lounges (the Lounges) from the respondent.
The Lounges were supplied to the appellant in July 2020.
In September 2020 the appellant advised the respondent that a spillage had occurred which had stained one of the Lounges despite the appellant following the respondent's cleaning instructions. The appellant also alleged other defects/damage to the Lounges which, he said, were not the result of fault on his behalf.
The appellant commenced proceedings in the Tribunal making a number of claims against the respondent, but the claims ultimately pursued in the Tribunal were for breaches of consumer guarantees provided in the Australian Consumer Law to the effect that the Lounges were not of acceptable quality and were not fit for their intended purpose.
The evidence in support of the claim for breach of those guarantees were two reports by a Mr Hartwell.
In his first report (of one page) dated 11 November 2020, Mr Hartwell expressed the opinion that the staining resulted from the absence of a suitable solvent topcoat (which, he said, would have prevented stains from any spill being irremovable had it been present). He also opined that there was poor colour fastness on the arm piping because the colour had, in his opinion, rubbed off from normal use.
In his second, even shorter report dated 13 November 2020, Mr Hartwell expressed the same opinions.
Nothing was said in either report about alleged peeling of the leather or an alleged defect with some of the stitching, which had also been the subject of complaint by the appellant. There were photographs in evidence before the Tribunal purporting to show peeling leather and damaged stitching, but no other evidence was given (of which we are aware) in support of those allegations. We note that we were not provided with a sound recording or transcript of the hearing before the Tribunal and so are unaware whether any oral evidence was given in support of these allegations.
The Tribunal admitted Mr Hartwell's reports into evidence, gave them very little weight and dismissed the appellant's claims.
After referring to various provisions of the Evidence Act 1995 (NSW), the Tribunal reasoned to that conclusion as follows:
"12. In order for the exception set out in section 79 of the (Evidence) Act to apply, the opinion evidence given by Mr Hartwell must be based, wholly or substantially, on his specialised knowledge gained by his training, study or experience: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 37. In this matter there is no such connection set out in Mr Harwell's evidence. He has not described his qualifications and experience and it was not otherwise put forward by the Applicant: paragraph 9.c above. Therefore, his opinions are not to be given other than very little weight.
13. Moreover, Mr Hartwell did not describe the process of reasoning that led him to his conclusions that a solvent top coat had not been applied or the colourfastness of piping was not sufficient. If he had described the process by which he arrived at his opinion, being the manner of his examination or technical tests undertaken, some weight could have been given to this evidence.
14. What is displayed in the 13 photographs: (applicant's/appellant's documents) pages 4 to 10, are dirty surfaces which could, on the balance of probabilities, be attributed to causes other than those set out in the specialist reports. Moreover, the Applicant described that the peeling of the piping is shown in the photograph at page 10 of the (applicant's/appellant's documents). The other 12 photographs do not show any peeling of the piping and the cause of the condition of the piping shown in paragraph 12 is not inconsistence [sic] with damage caused through use.
15. On the balance of probabilities, the evidence of the Applicant does not satisfy the Tribunal that some inherent defect with the Lounges has a causal connection to the appearance of the same and the assertions and submissions put forward by the Applicant. Therefore, this Application should be dismissed."
[2]
Appeal Grounds
The appellant sought leave to appeal on two grounds referred to in cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), namely that he may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal was against the weight of evidence [cl 12(1)(b)], or
2. significant new evidence had arisen (being evidence that was not reasonably available at the time of the hearing before the Tribunal) [cl 12(1)(c)].
[3]
Principles
The legal principles to apply to such grounds of appeal, and whether leave should be granted to raise them, were set out in Collins v Urban [2014] NSWCATAP 17. In summary they are as follows.
Clause 12 does not require that we must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that we be satisfied that the appellant may have suffered a miscarriage of justice.
A substantial miscarriage of justice, in this case, refers to a failure in the way the matter was decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.
The appellant is required to persuade us that a substantial miscarriage of justice may have been suffered because of either of the circumstances referred to in cl 12(1)(b) or (c) (which are relied upon by the appellant in this appeal). That is, he needs to show that there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved had the relevant circumstance in cl 12(1)(b) not occurred or if the fresh evidence under cl 12(1)(c) had been before the Tribunal at first instance.
If we are satisfied that the appellant may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(b) or (c), then we may grant leave under s 80(2)(b) of the NCAT Act. What that means is that even if the appellant satisfies us that one of the requirements of cl 12 of Sch 4 is made out, we must still consider whether we should exercise our discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
Ordinarily, if clause 12 is otherwise satisfied, it is only appropriate to grant leave to appeal if the appeal involves:
1. an issue of principle;
2. a question of public importance or a matter of administration or policy which might have general application;
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. where the Tribunal went 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.
In this case it is only the latter three categories which are potentially applicable.
[4]
Ground 1
A decision of the Tribunal is "against the weight of evidence" when the evidence, in its totality, preponderates so strongly against the conclusion found by the Tribunal that it can be said that the Tribunal's conclusion was not one that a reasonable Tribunal could reach.
That was not the case here.
Other than the two reports of Mr Hartwell, the balance of the evidence provided to the Tribunal in relation to the claims were a number of photographs (referred to in the quote from the Tribunal's Reasons at [10] above) and an expert report by a Mr Adami dated 25 January 2021 tendered by the respondent.
It is not clear what weight if any was given to Mr Adami's report as it is not mentioned in the Tribunal's Reasons. In any event it is contradictory to the appellant's case.
The photographs, by themselves (that is, without expert evidence or relevant lay evidence as to the circumstances in which the stains came to be on the Lounges), do not prove anything other than to establish that some marks (by which we include what appear to be stains, peeling leather and strained stitching) appear on various parts of the Lounges. How those marks came to be there, and whether they resulted from breaches of the consumer guarantees, is not otherwise supported by any evidence.
It is true that the Lounges were only several months old, but there was no evidence provided to the Tribunal that those marks were probably not caused by ordinary wear and tear or ordinary use, for example, but were caused rather by a breach of the guarantees.
The appellant is critical of Mr Adami's opinions (to the effect the marks were the result of spillages not being cleaned up quickly enough, dye transfer from something like clothing to the leather, and ordinary wear and tear), but even if those criticisms were valid, that does not mean that the appellant's case must succeed. The appellant bore the onus of proving on the balance of probabilities that there had been a breach of the guarantees, and since Mr Hartwell's reports were given very little weight (for reasons with which we agree) there was insufficient evidence before the Tribunal to satisfy that onus.
In those circumstances the photographs and the age of the Lounges do not, in our opinion, meet the legal test of preponderating so strongly against the Tribunal's conclusion that we could say that no reasonable Tribunal member could have reached that conclusion. In substance, the appellant's case failed for lack of evidence.
For example, the respondent accepted that topcoats are not liquid proof. Leather is a natural product that breathes, and topcoats act to delay absorption of liquids by leather, as distinct from preventing absorption completely. Thus, the respondent's case was that something was spilled on the Lounges and not cleaned off quickly enough to prevent the leather absorbing some of the spill.
Against that background, the photographs are not, by themselves, evidence supportive of the appellant's case without some evidence of the length of time the spill was present before it was cleaned off. No such evidence was given (as far as we are aware from the material the appellant supplied on this appeal). Nor does Mr Adami's report assist the appellant in this respect.
Therefore, in our opinion, the evidence does not, in its totality, preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
[5]
Ground 2
The appellant sought to tender on this appeal a further report from Mr Hartwell dated 20 April 2021 and submitted that this was significant new evidence within cl 12(1)(c) of Sch 4 to the NCAT Act.
To fall within that provision the evidence must be both "significant" and be "new" i.e. be evidence that was not reasonably available at the time of the hearing before the Tribunal.
The subject of the report was what was said to be "new defects or damages" that had arisen subsequent to the hearing before the Tribunal, and which were said to support the appellant's case that the Lounges were not of acceptable quality and were not fit for their intended purpose.
The relevant parts of Mr Hartwell's 20 April 2021 report said the following:
"11. A 'spill test' was conducted to assess the ability to protect itself from spills, oils, grease or the like. The test conducted, spilled the lounge with 'ink', then was left unattended for a reasonably short time. In accordance with the Section 4 of the instruction manual, extract below, the lounge was attempted to be cleaned. 'Promptly remove the stain gently by absorbent paper or absorptive cloth, applying minimal pressure to prevent the stain from entering the pores of the leather. Use a clean cloth, soaked in a very diluted solution of neutral soap, rubbing delicately.'
…
13. Accidental spills are not of major concern for leather lounges, as leather lounges have a protective layer or coating applied to it, allowing enough time for the spills to be cleaned prior to it soaking into the leather. A 'spill test' was conducted to ascertain the ability of the protective layer. The test concluded that the lounge was suspectable [sic] to damage or soaking of spills. It is the authors experienced opinion that the lounges lack a suitable solvent top coat which prevent the stains from any spills being permanent.
14. A visual inspection of the lounges, identified numerous newly arisen damages. Annexure "B" shows these damages and its description.
What is known
15. 'Studio leather & fabrics' (Mr Adami) was referred to the applicant by the retailer for 'cleaning services' for to [sic] any proceedings.
16. The authors experience is, that lounge retailers assessments are regularly, if not always, not favouring to consumers.
17. Leather Assessors, that act for retailers are acting as 'Loss Adjusters' their job is to reduce the retailers liability.
18. These Assessors, whilst nominally 'independent', rely for the majority of their work on the instructing retailer.
The conclusions
19. The lounge's condition is consistent with it's the [sic] original report dated 13 November 2021.
20. The lounge's condition is generally worsening, and in the author experienced opinion is due to leather fault.
21. The lounge is continuing to deteriorating in short periods, and in the author experience opinion is unfit for purpose and of poor leather quality.
Annexures
22. Annexure 'A' - The author's experience (the expert's CV)
23. Annexure 'B' - Inspections photos and description of new damages."
We do not consider this report to be "significant" evidence for the following reasons.
The spill test referred to in paragraph 11 of the report was not described, the substance which was said to be "ink" was not identified and the "reasonably short time" not given with any precision. Therefore, all the report conveys is that an unknown substance was left on the leather for an unknown period as part of a test whose parameters we do not know.
In relation to Mr Hartwell's opinion in paragraph 13 that "The test concluded that the lounge was suspectable [sic] to damage or soaking of spills", no assessable facts or reasoning process is set out in the report which supports that conclusion. Mr Hartwell did provide some limited facts, being that he conducted a spill test with "ink" which he left on for a short period, but without knowing more facts about those matters (such as what the "ink" was made of, how long it was left on the leather and how the spill test was conducted) and without being told how Mr Hartwell reasoned from those facts to his conclusions, we are unable to assess his facts and reasoning process to determine whether his ultimate opinion should be given any weight.
It is for those reasons that the Tribunal's Practice Direction 3 - Expert Evidence requires, in cl 19, that expert reports to which the Practice Direction applies, must include, amongst other things:
1. the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed);
2. the expert's reasons for each opinion expressed;
3. any literature or other materials used in support of the opinions; and
4. any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out.
As was explained in Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [191]‑[192], a party must ensure that their expert evidence provides a satisfactory basis for the conclusions that the party wishes the tribunal to come to. In that case the Appeal Panel said:
"[191] ... In these situations, the question of the acceptability of expert evidence in the Tribunal will be one of weight not admissibility. In addition, the Tribunal is required to be satisfied that expert evidence provides a satisfactory basis upon which it can make its findings.
[192] The requirement that the expert evidence provides a satisfactory basis for the making of findings by the Tribunal is reflected in:
(1) the Tribunal's procedural direction dealing with expert evidence, issued in February 2014 by the President under s 26 of the NCAT Act, NCAT Procedural Direction 3 - Expert Evidence, which the valuer expressly agreed to be bound by on p 2 of his report; and …"
In this Mr Hartwell's reports did not provide this satisfactory basis because he did not provide proof of his expertise, proof of all relevant facts or an explanation as to how he came to his conclusions based on those facts.
His report continued in paragraph 13 to express the opinion that "It is the authors experienced [sic] opinion that the lounges lack a suitable solvent topcoat which prevent the stains from any spills being permanent", but this opinion is unsupported by any description of Mr Hartwell's experience, any reference to facts or any reasoning process.
The opinion also seems contradictory to the first sentence of paragraph 13. That is, in that first sentence Mr Hartwell says that coatings allow enough time for spills to be cleaned prior to it soaking into the leather, yet the last sentence seems to suggest that his opinion is that coatings prevent spills from becoming permanent. How a spill could be removed once it has soaked into the leather is not explained.
Paragraphs 15 to 18 of the report are further generalised assertions uncorroborated by any factual evidence and are not directed at Mr Adami, nor his report.
Paragraphs 20 and 21 contain more generalised assertions, with more particular references being provided in captions to the attached photos. However, most of the captions simply assert that there is a mark (which is visible in the photos) which Mr Hartwell asserts appears to be from water, moisture or the like, is permanent and is consistent with no protective layer having been applied to the leather.
But this last-mentioned opinion is not consistent with his report that top coatings (or protective layers) allow enough time for spills to be cleaned prior to the spill soaking into the leather. In the absence of knowing how long the water or moisture was present, we are left in the dark as to whether it was present for a longer period than a protective layer (or coating) was designed to resist.
In addition, as we have said earlier, there was no evidence that Mr Hartwell has any relevant expertise such that we would be prepared to give his opinions any weight.
The appellant attempted to prove Mr Hartwell's expertise by tendering his CV, but the CV proved next to nothing. His CV was as follows ("Uticolor" being a reference to the organisation he worked for):
"About Uticolor
Uticolor is Australia's largest and most successful mobile vinyl, plastic and leather repair service. Uticolor services products ranging from car, boat, aeroplane, farm equipment, home or office furniture, if it's worn, torn, scratched, scuffed, faded, ripped or otherwise damaged, Uticolor can repair and cosmetically enhance almost all types of materials, often in position and on-site, thereby avoiding removal and refitting costs.
Uticolor services include:
• Plastic welding, repairs, recolouring and resurfacing
• Vinyl welding, re-colouring and conditioning
• Leather repair and re-finishing
• Automotive carpet and cloth colour rejuvenation and repairs
• Odour elimination treatments
1985 to current
1. I have been involved with the Utlicolor franchise since 1985 during which time I have done a considerable amount of work with leather products, their repair and re-colouring as a technician.
2. The Uticolor franchise has a regular update system to advise operators of any changes or products which may use to us with the repair and maintenance of leather upholstery.
3. In my years of experience, I have completed work for clients including Mercedes Benz, BMW, Lexus, Crown Casino Barangaroo and various furniture stores, along with Grace removals and independent re-upholsterers.
The information about Uticolor does not inform us of Mr Hartwell's expertise. He is the author of the report, not Uticolor.
As to the information under the heading "1985 to current", none of it describes Mr Hartwell's expertise. He says he did a considerable amount of work with leather products, but so may both a labourer and a civil engineer say about working on building sites. The fact of doing much work in a particular environment does not, of itself, prove expertise on a given subject (just as the labourer's extensive history of working on building sites does not qualify him to express views on engineering matters).
There was no information in the CV (or elsewhere) which would prove that Mr Hartwell had the relevant expertise. For example, there was nothing in the CV about what training (if any) Mr Hartwell had in relation to leather, topcoats and spills, what courses (if any) he took in relation to leather, what books or other printed or electronic material he read to gain expertise in those subjects, or what instruction (if any) he was given by Uticolor or other experts in the field.
Thus, at the end of the day, we were not persuaded that Mr Hartwell had the relevant education, training and experience for us to give the opinions he expressed any weight.
For that reason, and for the reasons we gave at [34]‑[44] above, we are of the opinion that the evidence in this report is not "significant" evidence within the meaning of that term in cl 12 of Sch 4 to the NCAT Act.
[6]
Decision
As we were not satisfied that the Tribunal's decision was against the weight of evidence, nor that there was significant new evidence, we are not persuaded that 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 cl 12(1)(b) not occurred or if the fresh evidence under cl 12(1)(c) had been before the Tribunal at first instance.
We would also add that had we been satisfied of one of those matters, we would not have exercised our discretion to grant leave to appeal as we were not persuaded that any of the matters set out at [17] above exist in this case.
In particular, we were not persuaded that there was any injustice which is reasonably clear, any error that is plain and readily apparent, any factual error that was unreasonably arrived at and clearly mistaken, or any unfair result arising from any unorthodox fact-finding process.
[7]
Orders
We make the following orders:
1. Leave to appeal on a ground other than a question of law refused.
2. Appeal dismissed.
[8]
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: 07 July 2021