Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robertson v Kenport Petroleum Pty Ltd [2021] NSWCATAP 96 Hearing dates: On the papers Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member D Charles, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed Catchwords: APPEAL – appeal from dismissal of claim that contaminated diesel fuel dispensed from petrol station – held no direct evidence of cause of contaminated fuel in appellant's vehicle – held insufficient circumstantial evidence to justify acceptance of claim – decision upheld – appeal dismissed Legislation Cited: None cited Cases Cited: Calin v The Greater Union Organisation Pty Limited [1991] HCA 23 Chamberlain v The Queen (No 2) [1984] HCA 7 Texts Cited: None cited Category: Principal judgment Parties: Murray Robertson (Appellant) Kenport Petroleum Pty Ltd (Respondent) Representation: Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): 2021/00056034 (AP 21/01300) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 26 November, 2020 Before: D Moss General Member File Number(s): GEN 20/30582 reasons for decision Background 1. By Application filed on 16 July 2020 the Appellant in these proceedings, Murray Robertson brought a claim in the Consumer and Commercial Division of this Tribunal against the respondent Kenport Pty Ltd claiming payment of $11,000 as compensation for damage sustained to a motor vehicle allegedly caused by contaminated diesel fuel which he had purchased from the respondent. 2. By decision made on 26 November 2020, which was the subject of written reasons for decision issued on 2 December 2020 a Member of this Tribunal dismissed the appellant's claim. The appellant has sought leave to appeal and to appeal from that decision. 3. In essence, the appellant's application was dismissed because the Member concluded that she was not satisfied on the balance of probabilities that the diesel fuel supplied by the respondent to him was "not of acceptable quality or not fit for purpose." 4. Both parties filed submissions and certain factual documentation and both parties agreed that these appeal proceedings should be determined on the basis of that material without the necessity for a hearing. We agree that this is an appropriate course and have proceeded accordingly. We add for completeness that some of the factual material, especially that provided by the respondent was not provided to the Member in the original proceedings. The appellant has not objected to our receipt of this additional material. However, we are able to determine these proceedings without reference to that additional material. The factual background 1. Because the determination of the appellant's application and this appeal revolves around the factual circumstances which pertain to the proceedings it is convenient that we set out those circumstances as revealed in documentation filed by both parties. 2. The appellant owned a Hilux diesel motor vehicle. He experienced no problems with it prior to 8 October 2019. During the morning of that day he filled the vehicle with fuel purchased from the respondent's garage. Initially there were no problems with the vehicle. At a later stage and having travelled from his home in Batar Creek a distance of which we are unaware the appellant spent approximately one hour driving slowly because of an accident and noticed that the vehicle was idling roughly. He later noticed a loss of power and that the vehicle was consuming a lot of fuel. Later that day he informed the respondent by telephone of the problems that he had encountered. 3. The following day the appellant took the vehicle to a local mechanic in Bilpin who said that there was an "injector issue". On 10 October the appellant drove to Ryde, a Sydney suburb, and consulted an "injector specialist", Ultra Diesel, which carried out work on the fuel system. Even though the vehicle then appeared to be operating without trouble, the appellant later encountered a return of the rough idling when it reached its operating temperature, apparently caused by 1 of the 4 cylinders not operating. At that stage the appellant agreed to a rebuild of the engine. Despite this being carried out, it was later necessary to replace a valve associated with the turbo function. 4. The appellant said that he had only purchased diesel fuel between July and October 2019 from the respondent's facility. He also said that the fuel tank was securely locked at all times, and contamination could not have entered the tank in that way. 5. A report from Ultra Diesel dated 17 November 2019 states that upon inspection of the vehicle, presumably on 11 October 2019, "the injector number 3 was found to be seized and the fuel filter was found to be full of sand and metal filings." After the injectors had been fitted with new nozzles, the pump was reconditioned, the fuel tank cleaned and the filters replaced it was then discovered that cylinder number 3 piston rings were seized. It was at that stage that it was decided to recondition the engine. The report expressed the opinion that "the main engine works were the result of the seized injector caused by contaminated fuel." A later report dated 21 May 2020 clarified that the contamination consisted of sand grains and metal shavings. 6. The respondent forwarded an email to the appellant on 19 March 2020. Attached were photographs taken that day of the Pump 5 Diesel filter housing and filter which was the pump said to have been used by the appellant on 8 October 2019. The photographs were said to show both the filter housing and the filter as being clean with no trace or signs of contamination. The respondent stated this was the first occasion that the filter housing had been opened since the pump was installed in August 2018, the filters used in the pumps have 70 microns elements and would stop any contaminants flowing through the nozzles. 7. The respondent also provided a report from Northern Petroleum Equipment Services dated 15 May 2020. That report said that an inspection had been carried out at the service station on 19 March 2020. That inspection showed that after inspecting the diesel fuel quality and diesel dispensers on-site the product met Australian standards with no signs of contamination. The report confirmed that all fuel dispensers had in line 70 micron filters and fine nozzle filter screens "which will not allow even finest particles to pass through the dispensing nozzles. These filters are thoroughly inspected during the process and no contamination was found to be present." 8. The report concluded It is a common practice in the industry to replace filters every 12 months or when required, depending on the site. However, we can confirm that the original factory filters in all dispensers at this site are in excellent condition even after 20 months post initial installation. It is in our professional opinion that it is impossible for any sand and metal contamination to have occurred with the equipment installed at this site. 1. In a statement the respondent said that the last diesel fuel delivery to the service station before the purchase made by the appellant on 8 October 2019 was on 4 October 2019, and on that occasion the fuel was tested for quality at the terminal before dispatch and water and sediment volume was measured as being well below the "maximum standards." 2. The respondent further said that the 30,000 L diesel storage tank at the service station was aboveground which would have reduced the likelihood of contamination even in the event of a leak or breach in the tank wall. Furthermore, on the day of the incident the pump used by the appellant had previously dispensed 159 L of diesel fuel. It was said that if there was any contamination this would have affected every vehicle that had used that pump, and indeed the fuel from all pumps came from the single aboveground diesel tank. The respondent said that there were no complaints of contamination by any other customers. 3. In its statement the respondent's representative noted that no fuel sample was obtained from the appellant's fuel tank when it was vacuum cleaned by Ultra Diesel. Furthermore, the fuel filter fitted to his vehicle was specified as 15 microns which would have filtered any sand or metal contaminants if they had been present in the fuel purchased from its facility. 4. The appellant noted that building works had previously been carried out at the respondent's premises which may have created cement and metal contaminants, but he did not know when this had occurred. The respondent provided evidence that those building works had been carried out in 2018, and were therefore irrelevant to any suggestion made by the appellant that this had caused the contamination in the fuel. 5. In submissions the appellant challenged the respondent's statement concerning the integrity of the fuel, particularly as it had not been tested soon after he had notified the respondent on 8 October 2019. He also doubted the statement that no other customer who had purchased fuel on 8 October 2019 had complained of contamination, because engine problems could have occurred much later. However, these challenges are speculative only and the appellant does not have any particular evidence or information to corroborate them. In the absence of any corroborative material mere speculation cannot form a basis on which to attack the respondent's evidence. 6. In essence, the appellant relied upon the fact that the fuel system in his vehicle was sealed and locked, and that the engine suffered catastrophic failure due to contaminated fuel shortly after it was purchased from the respondent. As will be seen, because there is no direct evidence that the fuel as dispensed was contaminated his case was based upon what is known as "circumstantial evidence", a concept which we shall discuss later in these reasons for decision. The decision under appeal 1. After reviewing the evidence which had been provided for the purpose of the proceedings, the Member said Having carefully considered all of the evidence, the Tribunal is not satisfied on the balance of probabilities that the sand and metal filings that contaminated Mr Robertson's motor vehicle came from diesel fuel supplied by the Respondent. The Tribunal is not satisfied on the balance of probabilities that the diesel fuel supplied by the Respondent to the Applicant was not of acceptable quality or not fit for purpose. The grounds of appeal 1. The appellant put forward two primary grounds of appeal. The first was that the Respondent had been allowed to rely on evidentiary material which had not been filed within the time limitation period fixed by the Tribunal. This is not a matter which was adverted to by the Member in her reasons for decision. We are unsure whether it was raised during the course of the hearing before her. In any event, there is no suggestion that in some way the appellant was prejudiced in participating in the hearing because the respondent's material had been provided out of time. In the absence of any evidence of any prejudice, and because we have determined to dismiss the appeal on its overall merits, we reject this first ground. 2. The second ground is, in essence, that the decision was contrary to the evidence and the weight of the evidence. Consideration 1. We now come to consider whether the decision was contrary to the evidence and the weight of the evidence. 2. To succeed on this ground the appellant must establish that the only conclusion which the Member could have reasonably reached based on the evidence before her was that the damage sustained to the respondent's vehicle was caused by the delivery of fuel to it from the respondent's pump, which fuel was contaminated by sand grains and metal shavings. (See Calin v The Greater Union Organisation Pty Limited [1991] HCA 23 per Mason CJ, Deane, Toohey and McHugh JJ at [19]). 3. There is no direct evidence that the diesel fuel which the appellant purchased from the respondent on 8 October 2019 was contaminated in a manner which he alleges. Whether the appellant was able to prove that this occurred to the satisfaction of the Tribunal depended upon whether there was relevant circumstantial evidence that this is what occurred. 4. The principles concerning the use of circumstantial evidence are usefully summarised in Chamberlain v The Queen (No 2) [1984] HCA 7. In their joint judgement Gibbs CJ and Mason J (as his Honour then was) said: 16. It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR, at p 379 , that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt". (at p536) 1. It follows that in determining this principal issue the Member was required to consider all of the evidence which was relevant and then ascertain whether she was able to draw an inference from the circumstances which must raise a more probable inference in favour of what was alleged by the appellant. 2. Prima facie the position proposed by the appellant was an attractive one. He had only purchased fuel from the respondent, and his fuel tank remained locked at all times. The report of Ultra Diesel stated that the cause of the seized injector was fuel contaminated by sand grains and metal shavings. However, on the respondent's evidence sand grains and metal shavings could not have been dispensed through its diesel pumps. Furthermore, it was said that the filtration system in the respondent's vehicle would also have precluded this from occurring. Unfortunately, there is no evidence about the amount of sand found and the size of the metal shavings, and therefore no expert evidence about the likelihood of the source of these contaminants. The task confronting the Member in these circumstances was to determine whether there was a more probable inference that the position contended for by the appellant should be preferred to that contended for by the respondent. 3. In determining whether this appeal succeeds we are required to assess whether the only conclusion which the Member could have reasonably reached based on the evidence before her was that the damage sustained to the appellant's vehicle was caused by the delivery of fuel to it from the respondent's pump, which fuel was contaminated by sand grains and metal shavings. In all the circumstances, having regard to the totality of the evidence we are unable to determine that the only conclusion which the Member could have reasonably reached was that contended for by the appellant. It was open in all the circumstances for the Member to have accepted the evidence given on behalf of the respondent and to have reached the conclusion that she was not satisfied that the position contended for by the appellant had been established on the balance of probabilities. In these circumstances it cannot be concluded that in rejecting the appellant's case the Member fell into error. It follows that the appellant's appeal must fail. Order 1. Leave to appeal is refused and 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. 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