Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Car Mart Direct Pty Ltd v Lesslie [2022] NSWCATAP 182 Hearing dates: 7 April 2022 Date of orders: 02 June 2022 Decision date: 02 June 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member D Fairlie, Senior Member Decision: 1. In relation to any questions of law the appeal is dismissed. 2. In relation to any other errors, leave to appeal is refused. Catchwords: APPEAL – question of law – other error – no question of principle Legislation Cited: Australian Consumer Law - ss 54 and 55 Civil and Administrative Tribunal Act 2013 (NSW) - s 80; cl 12 of Sch 4 Motor Dealers and Repairers Act 2013 (NSW) – s 69(5) Cases Cited: Bogoevski v Stricklands [2015] NSWCATAP 133 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe [1986] HCA 33 Drivas v Burrows [2014] NSWCATAP 87 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Appellant: Car Mart Direct Pty Ltd Respondent: Barbra Lesslie Representation: Mr Brown, Director (Appellant) Respondent: self-represented File Number(s): 2022/00023343 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 12 January 2022 Before: S Hausfeld, Member File Number(s): MV 21/43772 REASONS FOR DECISION Summary 1. The appellant appeals from a decision of the Tribunal in matter MV 21/43772 of 12 January 2022. 2. The Tribunal ordered the appellant to pay the respondent $7,500. 3. We heard this appeal on 7 April 2022. 4. At the conclusion of the appeal hearing we made the following orders and directions by consent: (1) On or before 5 May 2022, or such later date as is directed by the Appeal Panel, the appellant is to repair the subject engine of the respondent's vehicle in a proper and workmanlike manner. (2) On or before 5 May 2022 (or such later date as is directed by the Appeal Panel), the respondent is to inform the Registry and the appellant whether the engine has been repaired in a proper and workman like manner. (3) If the engine is repaired to the satisfaction of the respondent in a proper and workmanlike manner by 5 May 2022 (or such later date as is directed by the Appeal Panel) the Appeal Panel proposes to allow the appeal and set aside the decision of the Tribunal of 12 January 2022 in matter MV 21/43772. (4) If the engine is not repaired to the satisfaction of the respondent in a proper and workmanlike manner by 5 May 2022 (or such later date as is directed by the Appeal Panel) the Appeal Panel will determine the appeal on the basis of the filed evidence and submissions and the additional oral evidence and submissions of the appeal hearing of 7 April 2022. 1. On 27 May 2022 the appellant sent an email to the Registry which stated: I've recently had a case about getting my car fixed the car yard had my car twice and its still not fixed properly. (Typographical errors as in original) 1. Accordingly, consistent with our directions of 7 April 2022, we will now proceed to determine the appeal. 2. For the reasons set out below: * in relation to any questions of law, we have decided to dismiss the appeal; * in relation to any other errors, we refuse leave to appeal. Decision under appeal 1. The respondent filed an application in the Tribunal on 22 October 2021. She claimed, and the Tribunal accepted, that she had purchased a motor vehicle from the appellant on 12 September 2020 for $17,990, a vehicle with almost 109,000 kms "on the clock" (Vehicle). 2. We note that the Decision records at [6] that, as at the time of the hearing on 12 January 2022, the appellant had not filed any documents. 3. Given its age and mileage, the Vehicle came with a statutory warranty under s 69(5) of the Motor Dealers and Repairers Act 2013 (NSW) of 3 months or 5,000 kms, whichever first occurred. 4. However, as the Tribunal correctly noted, the respondent also had the benefit of statutory warranties under the Australian Consumer Law (ACL), including that the Vehicle would be of acceptable quality and fit for purpose: ACL, ss 54 and 55. 5. The Tribunal found that in about June 2021 the injector seals of the Vehicle's engine were leaking combustion up past the injectors and that it would be cheaper to fit a second-hand motor than try to repair the current engine. 6. The Tribunal found that, because the Vehicle ran for 9 months before the problem occurred, the Vehicle was, when sold, fit for its implied purpose of being driven on public roads. However, the Tribunal was also satisfied that the Vehicle was not of acceptable quality because it only lasted 9 months before reaching a state where it required a replacement engine. 7. In the circumstances, the Tribunal ordered the appellant to pay the respondent $7,500 compensation on or before 26 January 2022. Grounds of Appeal 1. The appellant's notice of appeal and its oral submissions indicates that the appellant agitates three grounds of appeal. 2. The first ground of appeal is that the Member constituting the Tribunal at the hearing did not want to listen to the appellant's evidence. 3. The second ground is that Tribunal was biased in favour of the respondent. 4. The third ground is that the appellant believes that there were additional options of remedy in favour of the respondent which involved the engine not being removed and a second hand engine being installed, which were not considered by the Tribunal. Reply to Appeal 1. The respondent agrees with the orders made by the Tribunal, save that she now submits that she has "paper work" from her mechanic indicating that a second hand engine would costs $10,900. 2. In our view is that the Tribunal correctly determined the respondent's application on the evidence then before it, and it is not appropriate to revisit that decision based solely on evidence that arose after the hearing. 3. In any event, as we explained to the respondent, had she wanted to challenge the order made by the Tribunal, she needed to file her own appeal. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. 2. The Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised. 3. We have undertaken that exercise, and we discern that the first and second grounds of appeal do raise questions of law, both grounds amounting to a submission that the Tribunal failed to afford the appellant procedural fairness: Prendergast at [13](4). 4. Accordingly, the appellant does not require leave to appeal in relation to the first two grounds of appeal. It does however require leave in relation to the third ground of appeal. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. 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 principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Consideration 1. We note at the outset that Mr Brown, who appeared at the appeal hearing, did not appear at the Tribunal hearing. That means he had no first hand knowledge of what happened at that hearing. He explained that Mr Sukarla, who had appeared at the Tribunal hearing, no longer worked for the appellant, but that Mr Sukarla had told him that the Tribunal Member kept "going off" and "didn't want to hear" the appellant's evidence. 2. As we explained to Mr Brown, the way one proves that Tribunal conducted itself in an inappropriate or unfair manner is to provide a copy of the sound recording of the hearing together with relevant extracts of a transcript of the hearing to the Appeal Panel (as had been directed on 15 February 2022). 3. The appellant failed to do so. First ground of appeal 1. There are two fundamental rules of natural justice or procedural fairness in relation to hearings. 2. The first is known as the hearing rule, the second as the bias rule. 3. The hearing rule requires that the litigant be informed of the case against them and be given the opportunity to be heard. In this case, clearly the appellant had the opportunity to be heard, as it was informed of the hearing and it was represented at the hearing. 4. While the appellant claims that the Tribunal did not want to listen or consider any additional remedies it proposed, in the absence of any evidence, such as the transcript of the hearing or even the sound recording (both of which the appellant was directed to file in the event that it wished to rely on those documents at the appeal), and given that Mr Brown was not present at the Tribunal hearing, this aspect of this ground of appeal must be dismissed. The second ground of appeal 1. In addition to the hearing rule, it is a fundamental principle of the rule of law that parties have the right to have their matter determined by an unbiased decision maker. 2. Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]. 3. The appellant has not articulated whether his claim is one of actual bias or apprehended bias. 4. Claims of actual bias are rarely made, and even more rarely upheld. Actual bias usually, but not universally, contemplates an "interest" (whether financial or otherwise) by the judicial officer (in this case the Tribunal member) in the outcome of the proceedings. No such claim is made in this appeal. In the circumstances, we do not accept that the member was motivated by actual bias in reaching their decision. 5. What the appellant appears to be suggesting is apprehended bias, that is, pre-judgment by the member of the application, arising from the claim that the member did not listen to submissions made by the appellant. 6. Again, such matters are usually demonstrated by providing a transcript of the hearing or at the very least a sound recording. As we have observed, the appellant did not provide either. 7. The principles for determining whether there is apprehended bias were explained by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], where the High Court stated: a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 1. We see no substance in this ground of appeal. The third ground of appeal 1. The third ground of appeal was that the appellant believes that there were "additional options of remedy in favour of the [respondent] which does not to have the engine removed and second hand installed". 2. The problem with this ground is that it does not appear that this was raised by the appellant at the original hearing. Certainly, there was no evidence before us to suggest that this was the case. 3. It is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it is contrary to principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, they failed to put during the hearing when he had an opportunity to do so: Coulton v Holcombe [1986] HCA 33 at [9]; Drivas v Burrows [2014] NSWCATAP 87 at [33]. 4. We are not satisfied that this ground of appeal involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result, which warrants a grant of leave. 5. It follows that leave to appeal must be refused. Conclusion 1. An appeal to the Appeal Panel does not 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]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing". 2. We consider that this appears to be the case with this appeal. 3. In addition, we consider that the structure of the Decision and the reasons for decision were entirely orthodox, the member setting out the relevant principles to be applied and making relevant findings of fact. 4. In our view, there nothing has been presented by the appellant to warrant the Appeal Panel setting aside the Decision. 5. That means that the Decision stands, and the appellant must pay the respondent the $7,500 as ordered by the Tribunal. 6. If it does not do so, the respondent is free to enforce the Tribunal's order with the assistance of the Office of the Sheriff of NSW. Orders 1. The Appeal Panel orders: 1. In relation to any questions of law, the appeal is dismissed. 2. In relation to any other errors, we refuse leave to appeal. ********** 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: 02 June 2022