Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robinson v Bondoc & Andre Automotive Pty Ltd [2022] NSWCATAP 217 Hearing dates: 28 March 2022 Date of orders: 30 June 2022 Decision date: 30 June 2022 Jurisdiction: Appeal Panel Before: S Thode, Senior Member G Burton SC, Senior Member Decision: 1. Appeal allowed. 2. Matter remitted for re-hearing by the Consumer and Commercial Division to be determined according to law. Catchwords: CONSUMER LAW – Motor Vehicles - failure to take into account a relevant consideration Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Norman Robinson (Appellant) Neptali Bondoc (First Respondent) Andre Automotive Pty Ltd (Second Respondent) Representation: Appellant (Self-represented) Mr R Frugtniet (First & Second Respondents) File Number(s): 2022/00007338 Publication restriction: Nil Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: NSW Civil and Administrative Tribunal Date of Decision: 3 December 2021 Before: J Searson, General Member File Number(s): MV 21/27161 Reasons for decision Introduction 1. The appellant commenced proceedings in the Tribunal seeking remedies under the Australian Consumer Law in respect of repair services provided by the respondents (the motor vehicle repairer) on 9 October 2021. 2. Mr Robinson asserted that the motor vehicle repairer had failed to provide services with due care and skill in breach of section 60 of the Australian Consumer Law and that the services provided suffered a major failure. Mr Robinson sought a refund in the sum of $3542 on the basis that the motor vehicle repairer had failed to repair an oil leak. 3. Mr Robinson's application was heard on 2 December 2021. Mr Robinson led approximately 300 pages of evidence, in the form of statements, photographs and videos. Critically Mr Robinson also relied on three invoices or quotes from separate mechanics. 4. The motor vehicle repairer filed statements in rebuttal. As the Tribunal noted in its decision, neither party had filed an expert report that complied with the expert code of conduct contained in NCAT Procedural Direction 3. 5. The appellant provided a partial transcript of the hearing, which the respondent agreed was accurate. 6. The Tribunal delivered its decision on 2 December 2021 dismissing the application. The Tribunal's decision 1. In dismissing the application, the Tribunal provided the following written reasons for decision: [3].… The applicant did not rely on any independent expert evidence or any report which complied with the provisions of NCAT procedural direction 3 with respect to expert evidence.… … [20] It is for the applicant to prove on the balance of probabilities and with evidence that the respondent failed to comply with the guarantee as to the provision of mechanical services with due care and skill and fitness for their intended purpose. [21] The main issue in this matter for determination by the Tribunal is whether the respondent(s) have breached their obligations under the ACL to provide services with due care and skill and whether those services were fit for their intended purpose. [22] The applicant did not rely on any expert or any mechanical evidence in relation to his claim that the services provided to him were done without due care and skill and were unfit for purpose. He appeared to be reliant upon bare assertion. [23] It is noted that no party produced any expert evidence which complied with NCAT Procedural Direction 3 in relation to Expert Witnesses. [24] There was scant evidence other than bare assertion by the applicant in support of his case. There being no mechanical evidence adduced by the applicant other than 3 quotes. Those quotes do not assist the Tribunal in relation to the determination of the liability of the respondent. At best the quotes are evidence of the quantum of any damages which may be awarded should the Tribunal be satisfied on the issue of liability. 25 Unfortunately, the Tribunal was not assisted by any independent expert evidence in the determination of this matter. No party to the proceedings called any evidence from an expert who was independent of the parties.… Therefore the applicant has not discharged the onus of proof and has failed to prove his case on the balance of probabilities. Accordingly the application is dismissed. The scope and nature of internal appeals 1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be 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. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated 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. Mr Robinson seeks to appeal on a question of law and seeks leave to appeal on the grounds that the decision was not fair and equitable and was against the weight of evidence. Consideration 1. The appellant's submissions asserted: "no evidence before the Tribunal refuted the claim that the car was leaking oil on 16 September after original pickup and 4 return visits to [the respondent]…. I asked the Tribunal consider that all of the written and oral evidence submitted by the applicant and respondent are in complete agreement that there is an oil leak on 16 September. Therefore on the balance of probability the oil leak repair was defective. 1. The appellant's written submissions and notice of appeal relied upon five grounds of appeal: 1. The Tribunal failed to take into consideration the written and oral evidence of the appellant. 2. The Tribunal failed to take into consideration the multiple visits for repairs necessitated by the respondent's failure to repair the oil leak properly or at all. 3. The Tribunal failed to take into account the respondent's admission that some of his work was defective. 4. The Tribunal erred in its assumption that the appellant's claim could not be made out without qualified expert evidence taking into account the objects of the NCAT Act. 5. The Tribunal erred in stating that there was "scant evidence other than bare assertion" by the appellant in support of his case. 1. The appellant submitted that he proceeded in this appeal by asserting both an error of law and by seeking the leave of the Appeal Panel. It is the appellant's submission that the Tribunal failed to take into account a relevant consideration, namely, the number of visits and defects that remained in the vehicle even after the motor vehicle repairer was given multiple opportunities to bring the repair to a satisfactory conclusion. 2. We are satisfied that a failure to take into account a relevant consideration raises a question of law. In addition, the appellant states that the Tribunal did not give the evidence appropriate weight and that the leave of the Appeal Panel is required. 3. However, in circumstances where the appellant is not legally represented, it is appropriate that the Appeal Panel consider the substance, and not merely the form, of the appellant's submissions. 4. As we understand the appellant's written submissions and the oral submissions made at the appeal hearing, the appellant asserts that four conclusions reached by the Tribunal were against the weight of evidence: 5. Those conclusions were: 1. The Tribunal's conclusion that there was bare or scant evidence that the respondent failed to comply with the guarantee as to the provision of mechanical services with due care and skill and fitness for their intended purpose. 2. The Tribunal's conclusion that, because the applicant failed to file expert evidence that accorded with NCAT Procedural Direction 3, the Tribunal must conclude that the applicant had not discharged the onus of proof and had failed to prove his case on the balance of probabilities. 3. The Tribunal's conclusion that there was no evidence to support the contention that there remained a number of defects in the vehicle. 4. The Tribunal's conclusion that there was insufficient evidence to make a finding that the respondent had breached its obligation to provide services to the applicant with due care and skill. 1. The appellant's oral submissions stated that, on the proper reading of the appellant's invoices, it was clear that three independent mechanics had come to the conclusion that the oil leak from the rear main seal persisted and that there were possible other leaks that needed to be rectified once the transmission was removed. The appellant relied particularly on the invoice entitled "Tozzis Mechanical" that was accepted into evidence at the hearing. It is Mr Robinson's submission that the Member failed to consider the document and failed to give it appropriate weight in coming to her conclusion. The document is entitled "Quotation" and contains a "job description" as follows: REMOVE transmission and replace rear main [seal] possible other leaks need to rectified (sic) when transmission removed REOVE (sic) dash and rectify dash rattle quote only for dash remove not for broken items behind dash Note this is only a quote only vehicle need to be stripe (sic) and quote note heater not working. 1. In a further quotation prepared by Car Pro-Automotive Transmissions P/L the writer states: Repair Engine Sump Leak Remove Sump and inspect for cause of oil leak 1. It is the appellant's submission that three repairers inspected the car and concluded that the oil leaks, which the respondent had been contracted to repair, persisted and that further repairs are required. The Member made no mention of the three repair quotes and had not taken the quotes into account, thereby falling into error. It is the appellant's submission that, had the Member analysed the quotations and/or invoices, the Member would have concluded that the oil leak, the investigation and repair of which formed the essence of the contract between the parties, persists and that further repairs are necessary to repair it. Whether or not the invoices are capable of such an interpretation is not for the Appeal Panel to decide. 2. We also note that it was not the appellant's case that the respondent guaranteed or represented that the car, given its age and number of kilometres driven, could be repaired to any particular extent. Equally, there was no suggestion that the respondent told the appellant that the car was not worth repairing. The respondent's submissions 1. Mr Frugniet represented the respondent. The respondent submitted the Tribunal correctly considered whether a breach of the guarantee under section 60 and or section 61 of the Australian Consumer Law had been established and correctly concluded that the evidence was insufficient to discharge the appellant's onus of proof. 2. The respondent supports the contention that there was no mechanical evidence that was capable of establishing that the work undertaken was faulty or that an inference could be drawn that the motor vehicle repairer had not carried out the contract work with necessary skill or care. 3. It is submitted that the Tribunal, after careful consideration of all the evidence placed before it, was right to find that there was insufficient evidence to make a finding that the respondent breached its obligations to provide services to the appellant with due care and skill and fit for their intended purpose. 4. The Tribunal had accorded procedural fairness and examined all of the material that the appellant relied upon at the hearing below, there was no substantial miscarriage of justice and no ground of law has been established. 5. The crux of the respondent's case was that the vehicle in question is over 20 years old and had travelled in excess of 350,000km and, although the respondent had been made aware that the alleged rear seal leak persisted, the respondent had been prepared to compensate the appellant during the course of a mediation on a without prejudice basis. 6. The respondent submitted that the vehicle was roadworthy after the work had been undertaken and completed and no reasonable decision-maker could have come to a different conclusion because the vehicle had travelled another 2000 km between the respondent's work being undertaken and the new quotations being provided. 7. Accordingly, leave to appeal should be refused and the appeal should be dismissed. Consideration 1. For reasons which will become apparent, we shall consider only the appellant's first ground of appeal. 2. The appellant contends that the Tribunal failed to take into consideration the appellant's written and oral evidence, and in particular failed to consider his three quotations or invoices. We are satisfied that the Tribunal's failure to consider the content of the three invoices is a failure to take into account a relevant consideration and this constitutes an error of law. As the Appeal Panel in ZGM v ZGN [2018] NSWCATAP 101 said at [37]-[39]: The authorities make clear that a failure to take into account a relevant consideration will only constitute an error of law if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the nature of the power to be exercised and the construction of the statute conferring that power. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452; Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27]. 1. The failure by the Tribunal to take into account the relevant invoices and/or the failure to deal with their content does in our view raise a question of law. 2. Without making any findings as to whether any such evidence should be accepted, the Appeal Panel identifies the following evidentiary material which was before the Tribunal below and which could be relied upon to support the appellant's case: 1. An invoice by Car Pro-Automotive Transmissions P/L where the writer states that further inspection for the cause of the oil leak is required; 2. An invoice by Tozzis Mechanical Repairs Pty Ltd where the writer states that the transmission needs to be removed to identify possible other oil leaks; 3. A letter by BigWheel Tyre and Mechanical where the writer identifies oil seepage at the rear of the engine main seal area or sump area. 1. The respondent's representative understood that there was a case made against the respondent on the evidence of the three invoices and responded in documents filed in the Tribunal. In particular, the respondent's submissions state that the respondent was prepared to compensate the appellant for the defective rear main seal and corresponding oil leak. The respondent did not object to the tender of the three invoices on the basis that they did not constitute expert evidence. 2. We are satisfied that the Tribunal's finding that the appellant's claim was without evidentiary support was wrong. We are satisfied that the second ground of appeal, the failure to take into account a relevant consideration, namely the three invoices, raises a question of law. That is not to say that the invoices relied upon by the appellant should have been accepted as capable of proving the oil leak had not been rectified. Rather, it was wrong to conclude in the circumstances that the claim in its entirety should be dismissed on the basis that there was no expert evidence to support the claim without considering the other evidence. 3. This ground of appeal having been made out and given the nature of the error, it is also appropriate to remit the whole of the appellant's claim to the Consumer and Commercial Division for rehearing. 4. The issues to be determined are: 1. Whether the invoices and other evidence are capable of establishing the respondent's failure to remedy the critical oil leak; 2. If the answer to question (a) establishes liability of the respondent to the appellant the Tribunal must establish the measure of loss and damage suffered by the appellant, by reason of the respondent's failure to repair the vehicle. 1. We have not heard from the parties in relation to matters relevant to quantum. In the circumstances, we have decided that the appropriate course is to remit the proceedings to a differently constituted Tribunal for re-determination on all matters including quantum. Having regard to the material that was before the Tribunal at first instance in this matter, we are satisfied that the evidence does not permit us to assess damages, in the event a failure to repair is established. 2. The Appeal Panel directs, as permitted by s 81(1)(e) of the Act, that the claim be remitted to the Consumer and Commercial Division and to be re-determined with or without further evidence as the Tribunal may direct. Orders 1. The orders that we make are as follows: 1. Appeal allowed. 2. Matter remitted for re-hearing by the Consumer and Commercial Division to be determined according to law. ********** 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 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: 30 June 2022