Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Star Ocean Auto Mechanic Repairs v Yu [2021] NSWCATAP 84 Hearing dates: 1 February 2021 Date of orders: 7 April 2021 Decision date: 07 April 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J Lucy, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: CONSUMER LAW – consumer guarantees – supply of goods and services – guarantee as to acceptable quality APPEALS – procedure – further evidence on appeal – leave to appeal – cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) – significant new evidence – evidence that was not reasonably available at the time of the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b), Sch 4 cl 12(1)(c) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Texts Cited: None cited Category: Principal judgment Parties: Star Ocean Auto Mechanic Repairs (Appellant) Yan Yu (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2020/00371231 (AP 20/52176) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 1 December 2020 Before: S Hennings, General Member File Number(s): MV 20/42156 REASONS FOR DECISION 1. In this case a motor vehicle repairer appeals from a decision of the Tribunal ordering him to refund the sum of $5,960.00 paid to him by the respondent for the faulty replacement of a transmission in the respondent's motor vehicle. 2. Essentially, the appellant seeks to rely on evidence which he did not provide to the Tribunal at the hearing. There is no error of law involved in this appeal that we can discern. To rely on the new evidence the appellant must therefore obtain leave to appeal on a ground other than one involving a question of law. 3. To obtain that grant of leave the appellant must persuade us, amongst other things, that the new evidence is significant and that it was not reasonably available to him at the time of the hearing before the Tribunal – cl 12(1)(c) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). 4. We are not persuaded on either count. 5. Accordingly, as more fully explained below, leave to appeal is refused and the appeal is dismissed. Background 1. The brief reasons of the Tribunal adequately explain the relevant background to this appeal and some of the facts pertinent to our decision. The Tribunal said (with some minor spelling and typographical corrections, the emphasis is ours): 1. The applicant took his taxi Toyota Tarago motor vehicle to the respondent for a transmission problem on 4-Feb-2020. The respondent replaced the transmission and the applicant paid $5,960.00. The applicant had problems again with the vehicle's transmission. In matter MV 20/17233 an order was made by consent of the parties that the respondent would take all steps to repair the transmission of the vehicle on or before 31 July 2020. Leave was granted for either party to renew the proceedings on or before 31 December 2020. The applicant claims that the transmission has not been fixed and seeks a refund. The Tribunal is satisfied that the matter has been renewed in accordance with the previous order and the Tribunal has jurisdiction to determine the matter. 2. The matter was to be considered pursuant to the Fair Trading Act 1987. The applicant falls within the definition of a consumer, the respondent falls within the definition of supplier and the transmission (parts & labour) falls within the definition of goods and services: Sect 790 & 79F. The Tribunal was satisfied that the matter was a consumer claim: Sect 79E, the respondent supplied the goods and services to the applicant: Sect 79G. There was jurisdiction to hear and determine the matter: Sect 79J. The goods and services to which the claim relates were supplied in New South Wales: Sect 79K and the claim was lodged within time: Sect 79L. The Tribunal has the power to make the order sought: Sect 79N. 3. Previous procedural directions were issued in matter MV 20/17233. Documents were submitted by both parties. The applicant has submitted a further document from Fred's Automatics Transmission Specialists. The Tribunal was satisfied that the matter was ready to proceed and should proceed. Both parties were given an opportunity to state their case. 4. The applicant stated that the transmission is still not fixed as per the independent evidence from Fred's Automatics Transmission Specialists which stated that the vehicle presented shuddering & slipping very badly & it was unable to be driven with no power. The recommendation was to replace the transmission. 5. The respondent stated that he purchased the transmission from Landmark Auto All Spares Pty Ltd and any problem with the transmission and warranty issue was their responsibility not his. The respondent stated that no problem has arisen out of his workmanship and he is not responsible. 6. The applicant has had problems with the transmission right from the time the respondent carried out the work. The Tribunal found based on the only mechanical evidence presented by Fred's Automatics Transmission Specialists that the transmission installed by the respondent was faulty and not of acceptable quality. The applicant originally paid the respondent to supply and replace the previous transmission. The respondent has been given an opportunity to rectify the situation by repairing this transmission in accordance with the consent order made in matter MV 20/17233. The Tribunal finds that the respondent has not fixed the transmission in compliance with that order. 7. The applicant paid the respondent for the parts and labour. The applicant did not pay Landmark Auto All Spares Pty Ltd. The respondent's belief that he can pass the applicant over to Landmark Auto All Spares Pty Ltd for any problems with the transmission or warranty is misconceived. Any claims in respect of the transmission that the applicant paid the respondent $5,960.00 to supply and install are properly made against the respondent. Clearly, the transmission replacement that the respondent undertook and was paid for has not worked and his opportunity to fix the issues has failed. The Tribunal found that the applicant is now entitled to a full refund. The Tribunal allowed the respondent a reasonable time to pay. 1. The appellant wanted us to take into account evidence that he did not provide to the Tribunal (noting that the Tribunal recorded that he did submit some documents and did have the opportunity to state his case). 2. The new evidence the appellant wanted to rely on was: 1. three written character references; attesting to the appellant's good character; 2. a Service NSW Registration Check of the respondent's vehicle; 3. an invoice dated 24 July 2020 from Sydney Automatic Transmission Specialists Pty Ltd for the removal and replacement of a reconditioned automatic transmission and converter, together with the replacement of all soft parts, the CVT pulleys and belt in the respondent's vehicle. 1. An undated letter from Sydney Automatic Transmission Specialists Pty Ltd addressed to the Tribunal Member who heard the case was in the material provided to us. It stated that that company had performed the work set out in the invoice, the vehicle was test driven with no problems evident, and the vehicle had never been returned to that company. We infer from the contents of the latter and [3] of the Tribunal's reasons that this undated letter was one of the documents given to the Tribunal at the hearing. 2. No error of law in the Tribunal's decision is apparent to us in reading the material and having listened to the parties' oral submissions. 3. What is apparent is that the appellant is, in substance, seeking leave to appeal pursuant to s 80(2)(b) of the NCAT Act. The leave referred to in that section is governed by the provisions of cl 12 of Sch 4 to the NCAT Act. 4. Clause 12(1) of Schedule 4 to the NCAT Act says: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only 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). 1. The appellant relies upon cl 12(1)(c) of Schedule 4 and says that the evidence we have referred to at [8] above falls within the terms of that clause. In our opinion the new evidence referred to is not "significant" as required by that clause, and the appellant has not persuaded us that that evidence was not "reasonably available" to him at the time of the hearing. 2. The three character references are not "significant" within the meaning of that word in cl 12 because evidence of a person's good character is not relevant to whether or not the transmission was faulty. 3. The appellant said that the Service NSW Registration Check was "significant" because it was dated 15 January 2021 (and presumably related to commencement of the usual 12-month registration period, being 31 October 2020) and could not have been obtained had the transmission been faulty as alleged. 4. However, the Check says two relevant things. First, it says that it is not "useable in court" or "certified for any legal evidence". Second, it says that it "is not a confirmation of the vehicle's road worthiness or that it meets safety standards". Therefore, on its face, the Check does not prove that it could only have been obtained had there been no fault with the transmission. 5. The invoice from Sydney Automatic Transmission Specialists Pty Ltd adds nothing to what can be read in the letter from that Company to the Tribunal to which we have referred at [9] above. As it adds nothing it is not "significant". 6. Further, we are not persuaded that any of the new evidence identified by the appellant was "not reasonably available" to him at the time of the hearing. 7. We appreciate that English is not his first language, and that the appellant is not familiar with the Tribunal's procedures. However, his explanation that he did not provide these documents to the Tribunal because he was not aware that he needed that evidence, and because he was unfamiliar with the Tribunal's processes, does not satisfy the test set out in clause 12. 8. That test was described in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. In that decision the Appeal Panel said, at [23]: "… This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. …" (Emphasis ours) 1. And at [24]-[25]: "[24] Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). [25] Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence." 1. The appellant's reason for not providing the identified evidence does not fall within these principles. The appellant's language difficulties and unfamiliarity with the Tribunal's processes may be accepted, but the Tribunal provides assistance with both of those matters. 2. Most parties to Tribunal proceedings are not familiar with the Tribunal's processes. Some assistance for parties as to the Tribunal's processes is provided on the Tribunal's website. Most relevantly in this case is the information provided as to what to do to prepare for a hearing. One webpage, headed "Prepare for your hearing" contains, for example, the following assistance: "You will need to prepare for your hearing so that you can present the best possible case. Things to organise before the hearing It is important to be prepared for the hearing. As soon as you receive the notice of hearing you should start getting ready for the hearing day. Take the time to carefully consider all of the issues and to find your evidence and other documents in support of your case Gather your evidence NCAT decides cases on the evidence presented at the hearing. You will need evidence to prove your case and to respond to any issues raised by the other party. Learn more about the different types of evidence: Verbal evidence Written evidence including how to prepare a statement Documents Witnesses Visit the NSW LawAccess website for suggestions on how to prepare a witness statement and to view an example of a witness statement." 1. The words and phrases underlined above contain hotlinks to further information on the website in relation to that particular item. 2. In addition, for those with language difficulties, interpreters are made available free of charge. The NCAT website says, on a page headed "Interpreters and translators": ​"If you are a party to proceedings and you need an interpreter, NCAT can organise this for you. This service is free of charge." 1. There is no evidence that the appellant availed himself of this assistance, or the oral assistance provided to parties who make enquiries as to what to do at the Registry. As the appellant has failed to take advantage of that assistance, we cannot accept his reasons for not providing the identified evidence to the Tribunal as being a basis for finding that that evidence was not "reasonably available" to him. 2. As the appellant has not persuaded us that his case falls within cl 12 of Schedule 4 of the NCAT Act, we refuse leave to appeal and dismiss the appeal. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 07 April 2021