Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 Hearing dates: 3 May 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member A Lo Surdo SC, Senior Member Decision: The appeal is dismissed Catchwords: APPEALS – Claim under the Australian Consumer Law (NSW) – need to provide evidence of causal link between conduct and loss. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Fair Trading Act (NSW) 1987 Motor Dealers and Repairers Act (NSW) 2013 Cases Cited: C2C Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2013] NSWSC 644 Jardin v Metcash Ltd [2011] NSWCA 409 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR Kameel Pty Ltd v Casey CC [2006] VCAT 526 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 82 ALR 175 Trade Practices Commission v Manfal Pty Ltd [1991] FCA 650; (1991) 33 FCR 382 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Andrew Soulis (Appellant) R & A Henry Auto Repairs Pty Ltd (Respondent) Brett Allen Henry (Respondent) Mark Gary Henry (Respondent) Representation: Appellant (self-represented) Respondents (self-represented) File Number(s): 2021/56089 (AP 21/05927) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 January 2021 Before: S Hennings, Member File Number(s): MV 20/38034 REASONS FOR DECISION Summary 1. The appellant, Mr Soulis, had work done on his vehicle by the first named respondent, R & A Henry Auto Repairs Pty Ltd, which apparently employs or has as its directors the second and third named respondents, Mr Brett Henry and Mr Mark Henry. 2. The appellant was dissatisfied with the workmanship of the repairs, and, as a result of this and certain issues arising from a review of dash camera footage captured whilst the repairs were undertaken, of other work previously performed by the respondents on his vehicle. 3. Whilst preparing his claim, the appellant discovered that the first-named respondent's motor vehicle repairer licence had lapsed throughout the period when it performed work on his vehicle; however that licence was reinstated by NSW Fair Trading, with retrospective effect. 4. The appellant commenced proceedings in the Consumer and Commercial Division, seeking a refund for work performed and alleged damages. He named all three respondents, for reasons which are not apparent where it seems that his agreement was with the first named respondent. For simplicity, though, we will not seek to differentiate between the respective rights and obligations of the three respondents in these reasons, as it has no material bearing on the outcome. 5. After hearing from the parties, the Tribunal reserved its decision, in part to review documentary and video evidence lodged by the appellant. 6. Whilst the matter was reserved, the appellant sought to withdraw his application. Again, the Tribunal took submissions from the parties about that issue. It then declined to allow the appellant to withdraw, and dismissed the substantive application. The Tribunal gave written reasons. 7. The appellant now challenges both the decision not to allow him to withdraw ("the withdrawal decision"), and the substantive decision. 8. The appellant claimed that his grounds of appeal raised errors on a question of law and did not seek leave to appeal. For the reasons set out below, we have decided to dismiss the appeal. Tribunal proceedings and reasons for the relevant decisions The withdrawal decision 1. In respect of the withdrawal decision, the Tribunal gave the following reasons for declining to allow the appellant to withdraw: 4). On the day after the formal hearing was conducted and concluded the applicant wrote to the Tribunal seeking to now withdraw the application. No reasons for seeking to withdraw the matter were given by the applicant to the Tribunal. Section 55(1)(a) of the Civil and Administrative Tribunal Act 2013 states: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances- (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate. The Tribunal clearly has the power to dismiss the proceedings in this instance as a final decision has not been made in the matter but the decision is discretionary. There is no automatic right, unlike perhaps other courts, for the applicant to simply withdraw the matter. The Tribunal wrote to the respondent to ascertain whether he consented to the withdrawal of the proceedings, or if not, why not. 5). The respondent strongly opposed the applicant's application to withdraw the proceedings. The respondent stated that the applicant has been systematically trying to destroy his business in an ongoing manner and sought that the Tribunal make a decision to finalise the claims and the matter. The respondent stated that the applicant was using this approach as a tactic to terminate to take advantage of the system because "he felt like he wasn't winning in the hearing he decided to pull the pin when it suited himself". The respondent attached and sent to the Tribunal the email that the applicant had sent to him which is set out as follows: Mr Henry I refer to the above mentioned matter. I have made an application to the Tribunal seeking to withdraw and cancel my application I made against you. It is understood that a party to an application can apply to withdraw and or cancel an existing claim prior to a final decision being made. As no such final decision has been made and or received as of 7am, 12th January 2021, I have forthwith advised the Tribunal that I wish to withdraw my claim against you immediately. This is because I can now pursue a fresh claim against you before a Local Court in NSW. Only then I believe I will receive a fair, unbiased and just hearing in which the letter of the law will be strictly applied by a competent Judge of the Court. Judges in the Local Court of NSW have a sound knowledge of the law and are certainly not biased and furthermore, one thing is certain, Judges of the Local Court do not engage in being biased, are not on anybody's side but are there to strictly adhere in complying with all the laws, regulations and legislation without fear or favo[u]r. As you will no doubt recall during yesterday's hearing before Member Hennings, this Member was more interested in pushing existing rules, regulations and indeed legislation right out the window in order to support and benefit you. This was clearly evident when Member Hennings made a number of unbelievable and remarkable comments with the first being that an unlicenced driver of a motor vehicle driving along a public street would not be committing the offense of "Driving whilst unlicensed," if he/she were pulled over by the police because Member Hennings stated, police are only there to ensure that the road rules are complied with. Secondly, and more remarkably, he stated that it was ok and that there is no offense or breach for a Trader in the State of NSW if he/she operated a Motor Vehicle Mechanical Business without being licensed. In other words, NSW Traders can operate with expired business licenses and or whilst being unlicensed. It was very clear that this Tribunal Member had absolutely no idea of any of the laws or legislation pertaining to unlicensed motor vehicle business and or traders in the State of NSW. You will be formally notified of the new Local Court proceedings in due course. Regards Andrew Soulis 6). The Tribunal considered the email as set out. The Tribunal accepted the respondent's submission based upon what was stated by the applicant in the above email that it appeared clear that he was using this approach as a tactic to terminate the Tribunal proceedings and recommence exactly the same case in the Local Court of NSW. 7). The applicant has originally decided to pursue the matter through the Tribunal. The Tribunal has the jurisdiction to determine the matter as a consumer claim. Both parties were given procedural fairness having had an opportunity to fully prepare and present their case before the Tribunal. The hearing concluded and the Tribunal stated to the parties that it would take time to watch all the applicant's videos, reconsider the submitted documentation and consider what was presented and stated at the hearing before reaching and sending out the final decision. There has been no sufficient reason presented by the applicant for seeking to withdraw the matter at this stage after the hearing has conducted and concluded. It is not that the applicant concedes for example that he has no case or that he does not want to pursue any claim(s) any further. The email sent by the applicant to the respondent in fact clearly states that the applicant still seeks to pursue exactly the same case. If the matter was dismissed by the Tribunal at this stage, it would clearly delay an outcome to the dispute and necessitate further lengthy legal proceedings for the parties when the case has already been heard in an appropriate forum. Overall, the Tribunal is not satisfied that it should exercise discretion to dismiss the matter based on the applicant's application to withdraw at this stage. Following the conduct of the matter and the conclusion of the case, the Tribunal finds in the interests of justice that the matter should be now determined. The application by the applicant to withdraw the matter is refused. The substantive decision 1. In respect of the substantive decision, the Tribunal made the following findings, after, correctly, recording its satisfaction that it had jurisdiction to determine the dispute: 11). The applicant alleged that the respondent engaged in misleading or deceptive conduct by trading when he was unlicensed in breach of Section 12 of the Motor Dealers and Repairers Act [(NSW)] 2013. The respondent stated that the business had been operating continuously since 1966 but accepted that his motor vehicle repairer's licence had lapsed inadvertently during the time that he dealt with the applicant. The respondent stated that this was due to the renewal notification being sent to a wrong address, but this has now been sorted out and the licen[c]e restored. An email actually submitted by the applicant from NSW Fair Trading dated 17-Sep-2020 confirmed that the licen[c]e was restored. It would appear that the licen[c]e now shows on the public register as continuous from the start date on 1 December 2014. The Tribunal accepts that this would be consistent with Section 33A(5) of the Motor Dealers and Repairers Act 2013 which states: (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. 12). Based upon the respondent's explanation and the conclusion of NSW Fair Trading, there was simply no evidence to establish the applicant's claim that the respondent had engaged in misleading or deceptive conduct by trading when he was unlicensed in breach of Section 12 of the Motor Dealers and Repairers Act 2013.The Tribunal found that it was a procedural error which has since been rectified by the respondent and the licen[c]e restored as continuous from the start date on 1 December 2014. The legislation states that the restored licen[c]e is taken to have been restored from the day on which the licence expired. On that basis, now that the licen[c]e has been restored, there is no legal argument that the respondent was unlicensed at any time when dealing with the applicant and the applicant's case based upon the respondent being unlicensed no longer has any merit. In any event, the Tribunal did not accept that the respondent was engaging in misleading or deceptive conduct by trading when his licen[c]e had lapsed during that time merely because he had inadvertently missed renewing it. The applicant's claim based upon misleading or deceptive conduct because the respondent was unlicensed is dismissed. 13). The respondent carried out various serving [sic, servicing] and repairs to the applicant's vehicle between February and July 2020. The various invoices for the work carried by the respondent were produced to the Tribunal. The applicant paid the respondent for the work in accordance with those invoices. The applicant seeks a full refund from the respondent in the amount of the invoices paid. The applicant also claimed the cost of some additional repairs. The applicant stated that he has doubts and suspicions in respect of the work being carried out properly or in fact at all. The applicant stated that the respondent stressed him into getting the timing belt replaced that in reality didn't need to be repaired or changed. The applicant alleged that the respondent drove the vehicle into the workshop in a manner that caused damaged to his oil sump under the vehicle. The applicant alleged that the respondent stole a H4 pair of Narva pack of globes from the glove box. The applicant stated that the respondent topped up his radiator with clear water when it should have contained coolant. The applicant claimed that the respondent abused and damaged his vehicle. The applicant relied upon his dash cam videos from the vehicle to show what had happened and a few photographs of the engine and associated area. 14). The applicant also provided a quotation from Suttons Mitsubishi Chullora with a list of repairs that he stated were required to the vehicle. The applicant claimed that the respondent should pay him for the cost of those repairs. He stated that the vehicle required: a). A full service. b). Replace heater core. c). Replace engine sump. d). Replace front & rear rocker cover gaskets & spark plug tube seals. e). Replace front cv shafts. f). Replace steering rack boots. g). Replace water pump including timing belt kit. 15). The respondent stated that he at all times carried out the required repairs that he has charged the applicant for in a proper and professional manner. The respondent stated that there is no basis for the applicant seeking a refund or the cost of any repairs. The respondent stated that the claim should be dismissed. The respondent stated that he was a qualified mechanic. The respondent stated that the business had been operating continuously since 1966 and Brett Henry and he (Mark Henry) have been operating the shop for 40 years with the knowledge to make expert diagnosis and decisions on the job. 16). The respondent stated that the applicant had submitted no mechanical report or similar evidence to support any of the claims that he was making. The respondent explained that the timing belt was due for replacement at 190,000 kms and that work was properly undertaken. The respondent denied that he stressed the applicant into the repair but rather they had previously discussed the issue in February 2020 and it was just a job that was coming up and had to be carried out in accordance with the vehicle's mileage and the applicant agreed for it to be carried out at that time. The respondent stated that the coolant was saved and re-used as requested by the applicant on one occasion (as noted on the invoice) but the over flow bottle was topped up with clean water as no extra coolant was supplied by the applicant. The respondent stated that the old parts were given to the applicant at the time that the vehicle was collected confirming that the timing belt and water pump were in fact replaced. 17). The respondent stated that there was no evidence presented by the applicant whatsoever to establish that the vehicle's sump was damaged or required replacing. The respondent stated that it was in fact the hanging tow hook that could be heard touching the ground in the video when the vehicle was driven into the workshop and not the sump. The respondent strongly denied that his employee had stolen any globes from the glove box and pointed out that they have plenty of those in the work shop. The respondent stated that a mere noise in the background of a video without any vision of what is occurring does not establish that the globes were stolen by his employee. The respondent stated the heater core inside the vehicle is faulty and despite their attempts to resolve the issue when they attempted to remove the heater hose at the plastic spout it was cracked and the plastic material had perished causing it to snap off. 18). In response to the applicant's quotation from Suttons Mitsubishi Chullora, the respondent identified that the document did not identify the vehicle or make any reference to having inspected the vehicle or the issues raised. The respondent stated in response to the specific issues identified in the quotation: a). All servicing and work was properly carried out and completed that the applicant was charged for and there is no reason that the respondent should pay for the applicant to now have his vehicle serviced by Suttons. b). It was identified that the heater core required replacement but that work was never carried out by the respondent for the applicant. The respondent denied damaging the heater core and as it needs replacing, the applicant should pay whoever does the work for the cost of the heater core to be replaced. c). The sump was not damaged in the workshop - it was the tow hook that could be heard touching the ground when the vehicle was driven into the workshop. There is no evidence that the sump is damaged or needs replacing. d). The respondent has not damaged the front & rear rocker cover gaskets & spark plug tube seals. There is no evidence that they are damaged or need replacing. e). The applicant has always been told that the front cv shafts need replacing. The respondent denied damaging anything and as they need replacing, the applicant should pay whoever does the work for the cost of them to be replaced. f). The steering rack boots have already been replaced by the respondent as part of the works and there is no evidence to establish that they require replacement again. g). The water pump including timing belt kit has already been replaced by the respondent as part of the works and there is no evidence to establish that they require replacement again. 19). The applicant bears (scil) the onus of proof in the matter to satisfy the Tribunal on the balance of probabilities of the claim(s) that are made. The applicant stated that he has doubts and suspicions in respect of the work being carried out properly or in fact at all. The Tribunal found that the applicant's case was not well prepared or presented. Other than the dash cam videos from the vehicle, a few photographs of the vehicle and a list of parts from Suttons Mitsubishi Chullora, the Tribunal was presented with very little evidence by the applicant to support any of his claims. The applicant submitted no mechanical evidence in the matter such as an independent mechanical expert report which the Tribunal would routinely expect in such a matter where the applicant is challenging the quality of the respondent's work or whether it had in fact been carried out at all. This would certainly be the usual case where the respondent as a mechanic with so much experience is stating in response to the applicant's claims that at all times he carried out the necessary and required repairs which he charged the applicant for in a proper and professional manner with due care and skill and he has not damaged the vehicle. The Tribunal could not accept that the applicant's doubts and suspicions alone would be sufficient to displace the respondent's evidence and opinion being a qualified mechanic and having such experience in stating that the work was carried out properly and with due care and skill. 20). The Tribunal considered that the applicant's dash cam videos and photographs did little to support the applicant's claims other than to identify that the respondent may have made some inappropriate comments in the situation. However, the Tribunal found that despite what was said during the vision and the audio contained on dash cam videos it in no way establishes that the timing belt in the vehicle did not require replacement. The applicant has not submitted any evidence to establish that his vehicle's timing belt was not due for replacement at 190,000kms, which is what has occurred. The Tribunal accepted the respondent's explanation that the noise in the video is the tow hook that could be heard touching the ground when the vehicle was driven into the workshop. And the applicant in any event has provided no actual evidence that the sump is damaged or needs replacing. The Tribunal accepted the respondent's explanation that the over flow bottle was topped up with clean water in the video as no extra coolant was supplied by the owner. The invoice for the works reflects the respondent's explanation of what is seen in the video in topping up the over flow bottle. The Tribunal accepts the respondent's submission that sounds heard in the background of a video without any vision of what is occurring does not in any way establish a serious allegation that the applicant's globes were stolen out of the vehicle by the respondent's employee. Finally, the Tribunal found overall that there was no evidence in the videos or photographs sufficient to establish that respondent had generally abused and damaged the vehicle. 21). In respect of the Suttons Mitsubishi Chullora quotation the Tribunal accepts the respondent's submission that there is no evidence to establish that the vehicle was even properly identified, inspected or assessed by Suttons. It appears to the Tribunal to be just a list of parts without any consideration as to why or whether they are required to be repaired or replaced on the vehicle. The Tribunal also accepts that there is also no evidence presented by the applicant to establish that the respondent should pay for servicing or the rest of the itemised repairs that the respondent has not caused or pay for work to be carried out again that the respondent has already completed. 22). In conclusion, the Tribunal found that there was no evidence presented by the applicant sufficient to establish that the respondent had in any way breached the Australian Consumer Laws. Based upon the evidence presented, the Tribunal found that the respondent carried out the required repairs that he charged the applicant for with due care and skill and in a proper manner. There is no basis for the applicant to receive any refund or any other money from the respondent. The claim is dismissed. An application for an adjournment of the appeal 1. In preparation for the appeal, the appellant sought a summons to NSW Fair Trading, in respect of the retrospective renewal of the first named respondent's motor vehicle repair licence. The documents sought were described as "ALL (sic) documents, file notes, emails and correspondence relating to" various aspects of the organisations regulatory function in respect of the respondent's work practices and licensing. The period set out for which the documents were required to be produced was, for the majority of the documents, 1 December 2017 to 10 September 2020. For one category of documents, being a "certificate certifying the licence status of Mark Gary Henry and Brett Alan Henry, proprietors (sic) of R & A Henry Auto Repairs Pty Ltd MVRL310", the period sought was 1 April 2018 to 9 September 2020. 2. The purpose of the summons was apparently to demonstrate that one or more of the respondents had misled Fair Trading, leading to the renewal, or to investigate what had occurred more broadly. 3. The summons was allowed by Deputy President Westgarth, notwithstanding the breadth and lack of particularity as to what was sought, but only for the period 1 February 2020 to 7 September 2020 for the first category of documents sought, being the business licence file for the first respondent. 4. The appellant made an application for an extension of time to lodge material in the appeal and to adjourn the hearing of the appeal. That application was dismissed by order of Deputy President Westgarth on 15 April 2021. 5. At the commencement of the hearing, the appellant indicated that he was not ready to proceed and made another application for an adjournment. 6. The appellant maintained that he was not satisfied that the material returned on the summons was sufficient to allow him to conduct his appeal. He also asserted that Fair Trading had failed to fully comply with the summons. He acknowledged that he could not identify any documents which must have been contained on the file but not produced. He assumed there must be such documents. 7. We were not satisfied that the appeal should be adjourned. There had been no appeal from the decision of the Deputy President to limit the period encompassed by the summons or to dismiss the prior application for an adjournment. Nor was there anything more than a bare assertion by the appellant that there must be more documents contained on the file of NSW Fair Trading, which fell within the description of what was sought, than was returned in compliance with the summons. It is also the case that the appellant required leave to adduce new evidence in the appeal. Most importantly, though, there was no evidence before us to demonstrate that the respondents had made any relevant representation in respect of their licence status to the appellant and, for reasons we will come to, the respondent's licence status does not assist the appellant's argument. As a result, an adjournment, even if it had led to the production of further documents, could not have assisted in a focus on the real issues in the appeal. Scope and nature of internal appeals 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). As indicated above, the appellant did not seek leave to appeal. 2. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. 3. The Notice of Appeal raised eight grounds of appeal, drafted as follows: 1. NCAT made an error of law in interpreting Section 42 of the Fair Trading Act [(NSW) 1987] and Division 1, Section 29, Sub-Section 1, (e), (f), (i), (ii) of the Australian Competition and Consumer Act [(Cth) 2010] with respect to the unlawful six (6) contracts/invoices from 7th February 2020 to 28th July 2020 which were generated by the Respondent and subsequently issued to the Appellant by deception at the time the Respondent was operating his mechanical business without any valid business and repair licenses. 2. NCAT made an error of law by failing to adhere to Section 42 of the Fair Trading Act and Division 1, Section 29, Sub-Section 1, (e), (f), (i), (ii) of the Australian Competition and Consumer Act with respect to the remedy available to consumers when traders engage in unlawful conduct by operating and repairing consumer's motor vehicles without any valid trade business licenses. The interpretation of the legislation, including the interaction between different pieces of legislation raises a question of law. The Respondent breached the six (6) invoices/contracts on the grounds that the monies received from the Appellant were unlawful because the Respondent mislead (sic) and deceived the Appellant into believing that he was a legally registered and licensed motor vehicle repairer. Under the law, consumers have a remedy and are entitled to claim monies given to unlawful and unlicensed traders. 3. NCAT made an error of law by concluding that Section 12 of the Motor Dealers and Repairers Act 2013 did not apply in the Applicant's case whatsoever. The Member declared that repair and business licences were not required as long as the work was performed...What is the proper meaning of the phrase: "A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless the person is the holder of a motor vehicle repairer's licence". 1. NCAT made an error of law when interpreting Section 33A Sub-section (5) of the Motor Dealers and Repairers Act 2013 by concluding that upon the Respondent having his licenses restored, he was completely absolved from any prior illegal and unlawful business activity. What is the proper meaning of Section 33A where it appears that the Member's reasoning and decision was in direct conflict with Section 12 of the Motor Dealers and Repairers Act: "A licence restored at any time is taken to have been restored from the day on which the licence expired." The Appellant maintains that Section 33A (5) does not, in any way, absolve a NSW Motor Trader from legal liability or responsibility if the trader engages in any form of work or services on passenger vehicles whilst not in possession of valid licenses. The Respondent was unlawfully trading from 1st April 2018 up until all his licenses were restored on 3rd September 2020. This was confirmed by The Department of Fair Trading Motor Vehicle Investigations Branch in an email dated 17th September 2020. This is also stipulated in NSW Fair Trading Guidelines on the Department of Fair Trading Website. The purpose of Section 33A is for a restored license to show and reflect on the NSW Fair Trading's Public Register only as being continuous from the commencement of the license start date to expiry. 1. NCAT made an error of law when interpreting Section 18 Schedule 2 and Section 29 of the Australian Competition and Consumer Act 2010. What is the proper meaning of the phrase: "A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services must A person must not (sic), in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." 1. NCAT made an error of law in Interpreting Sections 18 Schedule 2 and Section 29 of the Australian Competition and Consumer Act 2010 by failing to acknowledge that the contracts entered into by the Appellant and Respondent from 7th February 2020 and 28th July 2020 were invalid on the grounds that the Respondent was not lawfully licensed to trade or operate his motor vehicle repair business. The Respondent was unlicensed from 1st April 2018 to 3rd September 2020. A consumer is expected to be placed into a position had they not been mislead (sic). 2. NCAT made an error of law in failing to adhere to Section 38, Sub-Section 4, Sub-Section 5 (c) and Sub-Section 6 (a), of the NCAT Act. The NCAT Member failed to act in good faith, did not provide adequate explanations regarding his reasoning process and continually denied the Appellant with any opportunity to properly and fully present his case. The NCAT Member was manifestly biased in that, he made numerous decisions that favo[u]red the Respondent and his entire case. 3. NCAT made an error of law under the NCAT Act pursuant to the Member Code of Conduct in which the Tribunal Member engaged in a systematic campaign of bias, unfair decisions and preventing the Appellant to fully present his case against the Respondent during the hearing on the 11th January 2021. 1. We note that the prior s 42 of the Fair Trading Act was repealed at all relevant times and that, prior to its repeal, it had no apparent relevance to the matters in issue. All references to sections of the Australian Competition and Consumer Act are clearly intended to refer to the relevant sections of Sch 2 to that Act, which are incorporated into the Australian Consumer Law (NSW). 2. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it. Consideration of the Grounds of Appeal 1. The appellant at least partially traversed his grounds of appeal in making submissions on his application for an adjournment. When his application for an adjournment was refused, however, the appellant declined the opportunity to make further submissions, other than in reply to the limited submissions of the respondents. We considered the grounds on the basis of the appellant's written submissions and such oral submissions as were made in support of them. Whilst we accept that the respondent made little response to the grounds of appeal, as submitted by the appellant, the appellant bears the onus of satisfying us that one or more of his grounds identify a question of law relevant to the decision. The existence of a question of law is "…not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 82 ALR 175. 2. Despite the appropriate efforts of the appellant, as an unrepresented litigant, to attempt to identify questions of law in his grounds of appeal, we are not satisfied that he has done so in respect of questions which actually arise from the decision of the Tribunal. Certainly, the appellant alleges errors in the application of the law by the Member. However, that is not the same as a question of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. 3. Further, whilst we should make appropriate efforts to review the grounds raised by a self-represented litigant to determine whether a question of law has in fact been raised, we must also ensure that process is fair to the respondents. Here, where the appellant refused to participate in a discussion of his grounds after his adjournment application was refused, we were prevented by the appellant from properly undertaking this process. 4. Notwithstanding that, we will go on to briefly address why the appeal lacked merit in any event. Grounds seven and eight 1. These grounds allege that the Member conducted the hearing in a way which was demonstrative of the Member showing bias, or which was likely to lead to a fair-minded and informed lay observer reasonably apprehending that the member might not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding. 2. Clearly, the Member resolving various aspects of the appellant's claim against him is not, without more, evidence of bias or reasonably apprehended bias. As we will come to, the relevant decisions were not made in error in any event. 3. Reviewing the transcript provided demonstrates that the Member did actively engage in asking the appellant how his claims could be made out on the material before the Tribunal. That is not, without more, evidence of pre-judgment or bias. As the High Court said in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 at [13] : Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. 1. We respectfully agree with the view expressed by the West Australian Court of Appeal about that passage in SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 where it said that: [t]hese remarks apply with equal, if not more, force in relation to proceedings before the Tribunal where a party is self-represented. In such circumstances, the expression of tentative views to which a party can respond may be part of ensuring that the party is given a fair hearing. The impartiality of the Tribunal is, of course, essential; but impartiality is not inconsistent with the clear articulation to the parties of the issues that the Tribunal must consider, and any provisional views the Tribunal may have on those issues. 1. The appellant also points to the Member's decision to refuse the withdrawal application as evidence of the Member's bias. We do not accept that assertion. Section 55 of the NCAT Act provides, relevantly: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, … 1. As is clear from the use of the word "may" in the chapeau to that section, even if a party seeks to withdraw their application the Tribunal has a discretion to exercise as to whether to allow the withdrawal. Here, the Member set out in his reasons the basis upon which he exercised his discretion not to allow the appellant to withdraw the application. Nothing in that reasoning demonstrates bias or should cause a reasonable apprehension of bias. 2. In this appeal, we were not asked to grant leave to consider the merits of the withdrawal decision, nor was the proper interpretation of s 55(1)(a) of the NCAT Act raised as a question of law. 3. We would note, though, that the request was made after the evidence had closed, and whilst the Tribunal had reserved to make its decision. In that regard, one might expect that various factors would be considered and balanced in respect of leave to withdraw the proceedings. Without attempting to provide an exhaustive or prescriptive list, where the discretion is otherwise unfettered save by the purpose and context of the NCAT Act, particularly s 36, they might include the following factors derived from Trade Practices Commission v Manfal Pty Ltd [1991] FCA 650; (1991) 33 FCR 382 per Lee J at 383-4 : 1. The need to refrain from compelling a party to litigate against its will; 2. The extent to which the proceedings have developed; 3. Whether discontinuance may impose injustice on a respondent by removing an advantage that respondent may otherwise enjoy in the proceedings; and 4. Whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons. 1. Whether the other party consents may also be a relevant factor: Kameel Pty Ltd v Casey CC [2006] VCAT 526 at [2]. 2. The Tribunal may also need to consider, in appropriate circumstances, imposing a condition that the discontinuing party be precluded from commencing further proceedings on the same, or substantially the same, causes of action as are pleaded in the current proceedings: see NCAT Act, s 58 for the power to impose conditions to orders; C2C Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2013] NSWSC 644 (see also Heartlink Ltd v Jones (2007) 35 WAR 190; [2007] WASC 254 at [45]). 3. The weighing of those considerations in this instance reasonably permitted the Tribunal's decision to refuse the withdrawal. 4. These grounds have no merit. The balance of the grounds of appeal 1. Many of the remaining grounds are based on a fundamental misunderstanding by the appellant as to the difference between the consequence of breach of a statutory requirement where a penalty is incurred, and its effect on civil proceedings between parties. 2. As the Member below (albeit, with respect, somewhat inelegantly) attempted to explain to the appellant, there are different consequences which potentially flow from the respondents' failure to ensure that the first respondent's motor vehicle repair licence is maintained, depending on the forum where the issue is considered. 3. For example, even if the appellant's fundamental contention is correct and the first respondent was unlicensed during the period when repairs were conducted on his vehicle that does not automatically void the contract between the appellant and first named respondent. The effect of such a breach would be that the respondents may have been subjected to a penalty on prosecution. In the example given by the Member, an unlicensed driver may be guilty of an offence, but not found to be negligent or to have caused damage in an accident they are involved in. What was required here was a causal link between the actions of the respondents and the damage alleged by the appellant. 4. Nor is the position in respect of the first respondent's licence probative evidence that the work was carried out without due care and skill, or in breach of any statutory warranties under the Fair Trading Act read with the Australian Consumer Law (NSW). 5. Other evidence was required as to the nature and quality of the work undertaken on the appellant's motor vehicle, if the appellant was to satisfy the Tribunal below as to the basis for his claims for a refund and damages. The Tribunal was not satisfied that the appellant met the evidential onus he carried in that regard, for reasons it gave. 6. Finally, whilst the appellant was concerned to demonstrate that the respondents carrying out motor vehicle repairs whilst unlicensed showed that they engaged in misleading and deceptive conduct, there is actually no evidence before us to demonstrate that the respondents held themselves out as being so licenced in any event. 7. That is why the questions raised by the appellant, which might in another context have been properly reframed into questions of law, being: * What is the proper meaning of the phrase: "A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless the person is the holder of a motor vehicle repairer's licence"; * What is the proper meaning of Section 33A where it appears that the Member's reasoning and decision was in direct conflict with Section 12 of the Motor Dealers and Repairers Act: * "A licence restored at any time is taken to have been restored from the day on which the licence expired."; and * What is the proper meaning of the phrase: "A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: [followed by the relevant subsection] [or] A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." do not actually arise in these proceedings. 1. It has long been held that it is not the role of courts or tribunal's to pronounce on matters in the abstract. In Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [35], Campbell JA (Young JA and Meagher JA agreeing) noted that: "[I]t could only be in rare circumstances, if ever, that a court was justified in reaching a decision on a legal question that had no practical consequences for either of the parties": Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69. 1. For those reasons, there is no question of law raised. 2. As a result, the appeal must be dismissed. Orders 1. Our Order is as follows: 1. 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. 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: 29 October 2021