Civil and Administrative Tribunal New South Wales Medium Neutral Citation: York v Ken Ross Repairs Mudgee Pty Ltd [2020] NSWCATAP 93 Hearing dates: 24 March 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Curtin SC, Senior Member Decision: (1) The Appeal is allowed. (2) The decision of the Tribunal below is set aside. (3) The proceeding is remitted to the Tribunal, differently constituted, to be determined in accordance with law with the exception of the claims in relation to: (a) loss of enjoyment; and (b) threats of physical harm, which are otherwise dismissed. (4) The appellant shall not be permitted to tender evidence in the remitted proceedings going solely to the question of credit. (5) The appellant may not file any application for a summons for production of documents without prior leave of the Tribunal. Catchwords: CIVIL PROCEDURE – hearing – failure to give reasons – failure to engage with the appellant's case – error in finding evidence did not satisfy onus of proof – error in making orders – denial of procedural fairness – conditions imposed on conduct of remitted hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(4), 38(5)(c), 46(1) & 53(3) Civil Liability Act 2002 (NSW), s 16(1) Evidence Act 1995 (NSW), s 102 Cases Cited: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Hamod v State of New South Wales [2011] NSWCA 375 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Rodger v De Gelder [2015] NSWCA 211 Wakim v Mathiew Pty Ltd [2002] NSWSC 405 Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Category: Principal judgment Parties: Stephen York (Appellant) Ken Ross Repairs Mudgee Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) K Ross (Director) (Respondent) File Number(s): AP 20/1080 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 09 December 2019 Before: K Rickards, General Member File Number(s): MV 19/46666 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal ordering the appellant to pay the respondent $2,068.73 for repairs allegedly done to the appellant's vehicle. 2. For the reasons set out below we are of the opinion the Tribunal erred in law in the following four respects: 1. it failed to give any or any adequate reasons; 2. it failed to engage with the entirety of the appellant's case; 3. it erred in finding that the appellant's evidence did not discharge the "evidentiary onus" required to establish his claims; 4. it erred in making the orders it did in the absence of any proceedings having been instituted by the respondent, and in the absence of proper notice or procedural fairness being afforded to the appellant; and otherwise conducted the hearing other than in accordance with the dictates of natural justice or procedural fairness. 1. As the dispute between the parties involves disputed facts, the resolution of which would involve the assessment of the credit of the competing witnesses, and as that was not possible on the appeal, we have no choice but to return this matter to the Tribunal, differently constituted, to be heard according to law, but subject to some conditions to which we will come. Background 1. To explain the Tribunal's errors we need to briefly set out the parties' competing cases as expressed in the witnesses' written statements (there being no oral evidence in chief or cross-examination at the hearing). 2. The appellant owns an Iveco Daily Cab Chassis vehicle (the "vehicle"). He lives in Leura, NSW. The Appellant's Case 1. The appellant's version of events is that in August 2019 he contacted Mr Ken Ross, a director of the respondent whose workshop is located in Mudgee, about 170 kms to the north-west of Leura. The appellant says he asked Ken Ross, on behalf of the respondent, to inspect the vehicle and provide a pink slip to allow for re-registration and asked the respondent to reprogram a computer in the vehicle as a vehicle sensor was showing the vehicle to be in limp mode (the "sensor problem"). 2. The appellant said that Ken Ross told him not to drive the vehicle until the sensor problem was fixed, the vehicle should be towed to the respondent's workshop in Mudgee where the respondent would resolve the sensor problem and provide a pink slip for the vehicle. 3. The appellant says he agreed with Ken Ross that the cost for the pink slip would be the "standard fee", the cost to resolve the sensor problem would be $200, and Ken Ross said that those matters could be done within a two-week timeframe. 4. The appellant says that the vehicle was towed to the respondent's workshop on 15 August 2019. He says a pink slip was provided by the respondent shortly after the vehicle was delivered and before the end of August 2019. 5. The appellant says that as at 14 October 2019 the vehicle was not driveable and was not roadworthy because the sensor problem had not been fixed. 6. The appellant says that he made approximately five trips from his home at Leura to Mudgee to collect the vehicle, but each time he did so the vehicle was not in a roadworthy condition and was not ready to be driven back to Leura. Why the appellant could not have telephoned ahead to enquire whether the vehicle was ready to be picked up instead of driving to Mudgee to do so is not explained. 7. The appellant alleged that the failure to have the vehicle available for collection as agreed caused these unnecessary trips to Mudgee, caused him to incur the cost of tolls during those trips, lost time, fuel costs, cost in terms of the rental of a replacement vehicle, "loss of enjoyment (loss of use)", and "the unwarranted threat of physical harm to the (appellant) and to the (vehicle) by Ken Ross". He said that the failure to repair the sensor problem caused him to incur the cost of towing the vehicle to Mudgee. 8. The appellant sought compensation for those matters, together with the costs of retaining an independent assessor to check the work done by the respondent and to opine on whether the respondent had damaged the vehicle. 9. The appellant's claim, set out in writing in his Tribunal application, was for breach of contract and for breach of the Australian Consumer Law in that he alleged the respondent had engaged in misleading or deceptive conduct. 10. The appellant also tendered to the Tribunal below a statement of Debbie York dated 15 October 2019. She gave her address as Mudgee. She says she attended the respondent's premises on 16 August and paid for a pink slip for the vehicle and the inspection was done. 11. She says she was told to come back in two weeks. She did so, on 2 September 2019, but was told that nothing had been done to the vehicle. She was told to return the next Monday, and she returned on 9 September to again be told no work had been done on the vehicle. 12. She returned on 16 September to again be told no work had been done on the vehicle. 13. She returned on 23 September and was told the respondent was waiting for a part from Belgium and was told to return the following week. 14. She returned on 30 September, was told a new part had been fitted but "limp mode" was still being indicated. She was told a sensor was needed and to come back the following week. 15. She returned on 9 October and was told the work had not been completed and to come back next week. 16. She says no paperwork was ever given to her other than the pink slip. The Respondent's Case 1. The respondent tendered a statement of Ken Ross to the Tribunal, below, dated 22 November 2019. In that statement Ken Ross is silent about the conversations the appellant says he had with him, denies the allegations made by the appellant concerning alleged threats of harm to the appellant or the vehicle, denies (without going into any evidence) any liability to the appellant and asserts (without going into any evidence) the appellant owed the respondent the sum of $2,780.66 for repairs in accordance with a tax invoice dated 22 November 2019. Unexplained is why the invoice is dated the same date as his statement, being about one month after the appellant commenced proceedings and about two months after the last of the alleged work (described in the tax invoice) was done. 2. The respondent also tendered a statement of Rory Ross dated 22 November 2019. 3. Rory Ross says the appellant drove into the respondent's yard (in a utility motor vehicle, being a different motor vehicle to the Iveco which is the subject of this dispute) on 13 August 2019 and asked him (not Ken Ross) to attempt to repair the appellant's utility which had undergone an aftermarket fuel tank replacement / remanufacture because the Appellant had been unable to get the utility to run since. 4. He says the respondent did a temporary repair to the fuel tank, carried out a safety check for registration purposes, but told the appellant that the respondent did not have the appropriate software to read the Iveco control modules (presumably a reference to the vehicle) and he should take it to Sydney Iveco. He says the appellant offered to purchase the appropriate software for the respondent (at a cost of $3,500), an offer which was declined. 5. He says the vehicle arrived a week later on a tow truck, and no-one at the respondent's premises saw or spoke to the appellant. Rather, it was the appellant's wife (presumably a reference to Debbie York) that spoke to an employee of the respondent. 6. He says that there was never a quote of $200 given to the appellant and says that the appellant was told it would be a three-month turnaround at least, because the respondent was unable to guarantee a diagnosis. 7. Thereafter, he says the vehicle was assessed, it displayed fault codes the respondent could read, and the vehicle was found to have had various faults which were rectified. 8. He says the appellant's wife attended on 16 August and requested a pink slip. She was told other faults had been rectified, but the vehicle had an issue with initial cold start up. He said that the appellant's wife instructed him to "do what we have to do" (sic), and such work was of no great urgency. 9. He says the appellant's wife attended on 19 September 2019 requesting an update, and the respondent had never been provided with any contact details. She was informed some work had been done, but more was necessary. He says she instructed them to proceed with whatever work was necessary. 10. Further work was done, he says, and the appellant's wife attended on 1 October 2019. She was informed of the further work and was told the respondent would need the assistance of an Iveco technician who had the appropriate software to read the engine's live data feed. He says the appellant's wife agreed to this being done. 11. He says that the appellant attended around 11 October 2019 and there was, in summary, an unpleasant exchange between the appellant and one or more employees of the respondent. 12. He says that after the Iveco technician attended the vehicle the rail pressure sensor was replaced (on the technician's advice) and this appeared to fix the sensor problem without a guarantee being given that it had. 13. He says that the Authorised Inspection Station e-Safety Check Report dated 16 August 2019 (the pink slip) issued by the respondent indicated the only reason for a "fail" was that the number plate light was not working or damaged, and there was no mention of any sensor problem. Issues Between the Parties 1. As that summary of the parties' witnesses' statements reveals, there were a number of factual disputes between the parties which the Tribunal needed to resolve in relation to the appellant's claim for breach of contract and for misleading or deceptive conduct. 2. Those included, but were not limited to: 1. Did the appellant have the conversation he alleged with Ken Ross? 2. What were the relevant terms of the conversation? 3. Did what was said give rise to a contract and, if so, what were the terms of that contract? 4. Did Ken Ross make representations of fact which were misleading or deceptive? 5. Did Ken Ross make representations about future matters and, if so, did he have a reasonable basis for making them? 6. If no such conversation occurred, did the conversation alleged by Rory Ross occur? 7. Was work done on the vehicle as alleged by Rory Ross, or as represented to Debbie York? 8. Was the sensor problem resolved? 9. If not, did the existence of an ongoing sensor problem make the vehicle unroadworthy or incapable of being driven? 1. The Tribunal did not address any of those matters in its reasons, nor did it raise any of those issues with the parties at the hearing. 2. In relation to the cost of repairs, no application was ever filed in the Tribunal by the respondent against the appellant seeking orders that the appellant pay the respondent for the cost of repairs allegedly undertaken. The Hearing Before the Tribunal 1. The parties were unrepresented and are not legally trained. 2. The hearing took 51 min and 40 s. For most of that time the Tribunal Member spoke to the parties and asked them a number of questions. A few questions went to factual issues (such as whether there was a "scope of work" for the repairs the respondent said had been done to the vehicle), no questions were directed to the disputed facts and most questions were directed to ascertaining whether the Tribunal properly understood the parties' respective cases. 3. At no time did the witnesses give any oral evidence beyond their answers to the Tribunal's questions, nor were they asked whether they wished to do so by the Tribunal. 4. The unrepresented litigants were not informed they had the right to ask the Tribunal that they be allowed to cross-examine the opposing witnesses and no witnesses were cross-examined. 5. Given the differing versions of events, the credit of some of the witnesses was in issue and it is difficult to see how those factual differences could be resolved in the absence of cross-examination, or at least a critical examination and testing of that evidence through questioning by the Member. Those issues of credit encompassed both honesty and accuracy of recollection, but at least in relation to the former the Tribunal Member seemingly did not consider this was part of his function. When the appellant raised the question of veracity and the need to the determine "what is more likely to be true than not" the Tribunal Member said: "Thanks for reminding me of my duty. I have to make a decision on balance of probabilities (sic) as to what is a fair and appropriate order. I don't have to conduct a star-chamber inquiry as to peoples' veracity. … [A]nd I'm not going to." 1. We interpolate to observe that that statement by the Member was incorrect in two respects. First, the Member was required to decide disputed questions of fact on the balance of probabilities, not orders. Second, where there were differing versions of fact given by different witnesses it was the Member's obligation to consider the creditworthiness of those witnesses (both as to truth and reliability) in order to decide which version of events, or combination of them, was more probably accurate and to make findings of fact. 2. Therefore, it was part of his function to assess the veracity of the witnesses' evidence, albeit not by way of a "star-chamber inquiry". The member, who was at liberty to determine the procedure to be used in the conduct of the proceedings [s 38(1) Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act")], had the option of engaging in this fact finding through critical examination and questioning of the parties himself, by allowing the reasonable opportunity to the parties to do so in the form of cross-examination, or both. 3. The last matter to note, having heard the sound recording of the hearing, is that the Tribunal appeared to overlook the misleading or deceptive conduct claim. This error is confirmed by the Tribunal's reasons which make no mention of the claim for misleading or deceptive conduct. The Tribunal's Reasons 1. The Tribunal's reasons consist of 11 paragraphs. 2. The first paragraph refers to the hearing date, that material had been lodged by the parties and that the hearing proceeded "by way of submissions". 3. The second paragraph simply says: "All evidentiary material lodge by the parties has been considered in reaching this decision but will not be recited within these Reasons." 1. The third paragraph says that the appellant sought various orders, with the balance referring to a claim for loss of enjoyment resulting from loss of use of the vehicle, and a claim for loss arising from alleged threats of physical violence to the appellant and alleged threats of physical damage to the vehicle. The Tribunal dismissed those latter three claims on the basis they fell to be determined under the Civil Liability Act 2002 (NSW) (the "CLA"), they were claims for non-economic loss under the CLA, the CLA provided that no damages for non-economic loss could be awarded unless the severity of the non-economic loss was at least 15% of a most extreme case, there was no evidence that the severity of the non-economic loss was at least 15%, and therefore that aspect of the claim was dismissed. 2. The first sentence of the fourth paragraph refers to the "other heads of loss or compensation claimed" and said that in relation to those claims the appellant's "… evidence does not discharge the evidentiary onus required in order to establish such claims". 1. That is the totality of the reasons given for dismissing the appellant's claim. 2. The balance of the reasons is devoted to the respondent's claim for the cost of repairs said to have been effected on the vehicle, but in respect of which no application had been filed by the respondent, a fact acknowledged by the Tribunal at [7] of its reasons. A failure to Give Any or Any Adequate Reasons 1. The appellant's case, as expressed in writing in his application to the Tribunal, was for breach of contract and for misleading or deceptive conduct under the Australian Consumer Law. He said he suffered various losses as a result. 2. The Tribunal erred in four respects in relation to its reasons. 3. First, the Tribunal's reasons are completely silent as to whether there was a contract or not, what were its terms and whether any of those terms was breached. 4. Second, the Tribunal's reasons are completely silent whether there was any conduct by the respondent in trade or commerce which was misleading or deceptive. 5. Third, the Tribunal's reasons are completely silent on causation. That is, they are silent whether any of the alleged losses were caused by any breach of contract or any misleading or deceptive representation (assuming there was any breach or misrepresentation). 6. Each of those three matters involved one or more of the factual disputes we mentioned at [36] above and, in our opinion, were required to be adequately addressed. 7. Fourth, the Tribunal erred in relation to its reasons regarding loss set out at [4] of its reasons. In that paragraph the Tribunal said that the heads of loss or damage (other than those excluded by the CLA) were not proved by the appellant, at least to a prima facie level. The Tribunal did not explain why this was so. 8. The Tribunal did not refer to the evidence which supported the existence of those losses and did not explain why this evidence did not make out a prima facie case that the relevant losses had been incurred. The Tribunal simply said that: "All evidentiary material lodge by the parties has been considered in reaching this decision but will not be recited within these Reasons." 1. This was erroneous. 2. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Ipp JA said at [28]: "It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates." 1. In this case the Tribunal did not set out the evidence or explain why it didn't prove what it purported to prove. Two examples will suffice. 2. First, one of the appellant's claims was for the cost of towing the vehicle to Mudgee. In evidence was a tax invoice from a towing company, addressed to the appellant and with a "paid" notation. The appellant's statement referred to it. 3. Second, the appellant claimed for renting a replacement vehicle. The agreement was purportedly with Debbie York, and the purported half-page written agreement was tendered. Although that evidence may be regarded as thin, it was before the Tribunal and to the extent that the respondent had a opportunity to challenge it, it had not done so. 4. Where, as here, there is documentary material arguably supporting the appellant's case, that material must be considered in the Tribunal's reasons in a satisfactory way: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed at [63]. 5. The extent and content of reasons will depend on the particular case, but it is essential that they expose the reasons for resolving a point critical to the contest between the parties – Pollard at [58]. 6. In this case the Tribunal's reasons did not explain why it considered the documentary evidence (and associated testimonial evidence) did not prove to a prima facie level that the losses had been incurred. 7. For all of those reasons we are of the opinion the Tribunal's reasons were inadequate. Failing to Engage with the Appellant's Case 1. As we have mentioned, the appellant's case, as expressed in writing in his application to the Tribunal, was for breach of contract and for misleading or deceptive conduct under the Australian Consumer Law. 2. The Tribunal's reasons do not mention the claim for misleading or deceptive conduct. The sound recording of the hearing reveals that the Tribunal did not address this aspect of the claim, despite it appearing in the appellant's application. 3. Where a decision-maker fails to respond to a substantial argument there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ. 4. Therefore, in our opinion the Tribunal erred in law in failing to consider this claim. The Finding that the Appellant Did Not Satisfy the Onus 1. We have set out at [65] and [66] above two pieces of documentary evidence relating to losses the appellant said he incurred. Those documents were admitted into evidence and were unchallenged (keeping in mind the Tribunal did not advise the parties they could seek to cross-examine opposing witnesses) as was the appellant's evidence referring to them. 2. In our opinion, those documents together with the associated testimonial evidence from the appellant's witnesses proved, to a prima facie level, that the expenses referred to therein were incurred. Whether they were caused by any legal wrongdoing is a different question, we are here solely dealing with the Tribunal's finding that the appellant had failed to prove, on balance, that any losses had been incurred. 3. Therefore, in our opinion, the Tribunal erred in finding that a legal test (proof on a prima facie basis) was not met, and this is an error of law - Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [64]-[65] per McDougall J, with whom Beazley P and Simpson JA agreed. The Orders and Denial of Procedural Fairness 1. The Tribunal ordered the appellant to pay the respondent the sum of $2,068.73 for the cost of repairs done to the appellant's vehicle. The Tribunal reduced the respondent's claim to this amount from $2,780.66, for reasons which were not open to it, but we need not explore that error given that the orders need to be quashed in any event. 2. As stated, this may not have been a remarkable outcome except for the fact the respondent never sued the appellant for the cost of repairs, a fact acknowledged by the Tribunal at [7] of its reasons. Rather, the appellant had sued the respondent for damages allegedly suffered as a result of alleged faulty repair work. 3. It is true that the respondent had raised this issue in its witness statements, and the appellant acknowledged at the hearing that if legitimate repairs were done he should pay for the reasonable cost of them. 4. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] per Gaudron J, referred to with approval in Rodger v De Gelder [2015] NSWCA 211 per Gleeson JA, with whom Macfarlan and Leeming JJA agreed, at [95]. 5. In our opinion the Tribunal constructively failed to exercise its jurisdiction in that it misunderstood that the only proceeding before it was brought by the appellant against the respondent and directed its attention (in part) to claims which were not the subject of any proceedings before the Tribunal. Whilst the Tribunal "is to act with as little formality as the circumstances of the case permit", it must do so "according to equity, good conscience and the substantial merits of the case," albeit "without regard to technicalities or legal forms": NCAT Act, s 38(4). 6. It would have been possible for the Tribunal to have accepted an oral cross-claim in respect of the cost of repairs done to the appellant's vehicle and then considered that issue at the hearing, but to ensure procedural fairness in doing so it would have to have occurred on the basis of considered and explicit consent from the appellant. That was not the case. 7. The Tribunal also has a statutory obligation to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard and to have their submissions considered: NCAT Act, s 38(5)(c). In the circumstances we have described here, that did not occur. 8. The Tribunal did not explain the practice and procedure that it would adopt to the unrepresented parties, and in particular did not explain that either party may ask to be allowed to cross-examine the other party's witnesses. Given the adversarial nature of these proceedings and the significant factual dispute, in the absence of such an explanation the parties were not placed in a position to be able to make an effective choice – see Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley, Giles and Whealy JJA at [312] - as to whether they should ask to be allowed to cross-examine the opposing party's witnesses. 9. Since the Tribunal did not take the opportunity to examine or cross-examine witnesses itself [s 46(1)(c) of the NCAT Act], the lack of such an explanation being offered to the parties may have prevented them from having a reasonable opportunity to have their submissions considered, as the primary mechanism for resolving the factual dispute between them had not been engaged in. Had a party asked for leave to cross examine given the very different versions of events given by the parties' witnesses, it is difficult to see how that request could have been refused in the interests of natural justice. 10. As O'Keefe J said in Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]: There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted... 1. In the event, there was no cross-examination despite the differing versions of events. Conclusion 1. For all of those reasons the appeal should be upheld. Other Grounds of Appeal 1. The appellant raised other grounds of appeal which are unnecessary to decide because our decision on the earlier grounds is dispositive of the appeal. 2. However, we should say something about some of these grounds in order to assist in the final disposition of the case and to remove irrelevant matters from the remitted hearing and confine it within its proper boundaries. 3. Whilst the appellant seems to genuinely believe a significant wrong has been done to him, he raises many issues which are not relevant to his causes of action. Objectively speaking, the case is not significant in terms of proper compensation (assuming there is any compensation payable), the irrelevant issues raised by the appellant make the case disproportionate to its proper compass and the Tribunal must take proportionality into account in implementing its practices and procedure: s 36(4) of the NCAT Act. 4. In our opinion the remitted hearing should be confined in a number of ways to attempt to bring it back to its proper proportions for the reasons we shall give below. Denial of Summons 1. The appellant contends that he sought to issue a summons for production of documents on the Commissioner of Police for the criminal record (if there is one) of Ken Ross, but the Tribunal refused to issue the summons. The reason the appellant gave for asking for this summons to be issued was that the contents of such documents was relevant to credit. 2. We dismiss this ground. The Tribunal was correct to refuse to issue this summons. 3. Section 102 of the Evidence Act 1995 (NSW) provides that credibility evidence about a witness is not admissible. Even though the Tribunal is not bound by the rules of evidence there is no warrant in this case for the principle this section embodies, which is that prior criminal convictions for unrelated matters have little or no probative value in respect to credit, ought not to be applied in relation to the material sought by the summons. 4. We are not persuaded that the material sought by the summons could rationally support the conclusions sought by the appellant on the disputed facts relevant to his claims for breach of contract and misleading or deceptive conduct. 5. The refusal to issue the summons was correct. Statement of Cathy Clark 1. The appellant contends that the Tribunal below unfairly denied evidence to be submitted, being a statement going to the credit of the respondent's witnesses. 2. We dismiss this ground for two reasons 3. First, the sound recording of the hearing does not reveal any application to tender this statement. 4. Second, for the reasons we gave in relation to the summons, there is no warrant in this case to allow that statement and any other statements the appellant may seek to tender which go solely to credit. Safety of the Public 1. The appellant complains that the Tribunal erred in not considering the safety of the public in that, he alleges, the conduct and representations made by the respondent endangered the public. 2. None of those matters are relevant to a claim for breach of contract and a claim for misleading or deceptive conduct. What is relevant is whether there was a contract, what were its terms, were the terms breached, and did those breaches cause loss to the appellant. Similarly, for the claim for misleading or deceptive conduct. What is relevant is whether there was conduct, in trade or commerce, which was misleading, and which caused the appellant loss. Loss of Enjoyment 1. The appellant made a claim for what he called "loss of enjoyment". The Tribunal held that this was excluded because the appellant did not meet the threshold requirement of a minimum 15% of a most extreme case in terms of the severity of the non-economic loss as required by s 16(1) of the CLA. 2. As has now been made clear by the High Court in Moore v Scenic Tours Pty Ltd [2020] HCA 17 per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [3]-[4], albeit this judgment being delivered after the hearing in the Tribunal below, loss of enjoyment as a head of damage is not caught by the CLA. 3. But the appellant should have failed on that issue in any event, as such a head of damage is only recoverable in contract if the object of the contract was to provide enjoyment, relaxation or freedom from molestation – Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344. 4. Similarly, in relation to the misleading or deceptive case. This was not a case where, for example, a misleading representation was made in relation to a holiday. 5. It is difficult to see how there could ever be such a loss in relation to a work vehicle such as the vehicle involved in this case. In any event, the appellant's evidence in the Tribunal below was silent as to any loss of enjoyment and so that claim should have failed on a no evidence basis. Threats of Physical Harm 1. If there were threats (and the respondent denies them) then the appropriate authority to investigate them was the Police. Indeed, they were reported to the Police. 2. No evidence was tendered in the Tribunal below of any physical or mental harm of the relevant nature and extent to attract damages under the CLA. Accordingly, in that respect, the Tribunal was correct to say that, assuming there was any damage, it did not meet the relevant threshold. Orders 1. We make the following orders: 1. The Appeal is allowed. 2. The decision of the Tribunal below is set aside. 3. The proceeding is remitted to the Tribunal, differently constituted, to be determined in accordance with law with the exception of the claims in relation to: 1. loss of enjoyment; and 2. threats of physical harm, which are otherwise dismissed. 1. The appellant shall not be permitted to tender evidence in the remitted proceedings going solely to the question of credit. 2. The appellant may not file any application for a summons for production of documents without prior leave of the Tribunal. ********** 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 Amendments 28 May 2020 - Paragraph [36](8) "senor" corrected to "sensor" 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: 28 May 2020