Civil and Administrative Tribunal New South Wales Medium Neutral Citation: GNZ Enterprises Pty Ltd v Orabi [2023] NSWCATAP 203 Hearing dates: 4 July 2023 Date of orders: 26 July 2023 Decision date: 26 July 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member J Currie, Senior Member Decision: 1. Leave to appeal refused 2. Appeal dismissed. Catchwords: CONSUMER CLAIM – MOTOR VEHICLE — leave to appeal refused – whether decision not fair and equitable – whether decision against the weight of the evidence – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Colchester v Peck [1926] 2 KB 366 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lawless v The Queen (1978–1979) 142 CLR 659; [1979] HCA 49 Leung v Alexakis [2018] NSWCATAP 11 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69; Raslan v Pan [2015] NSWCATAP 12 Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Roach v Swain [2021] NSWCATAP 258 Stead v State Government Insurance Commission (1986) 161 CLR 141 Timmins v Timmins 120 L.T. Rep 544 [1919] Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 Texts Cited: Stroud's Judicial Dictionary of Words and Phrases (5th ed) Category: Principal judgment Parties: GNZ Enterprises Pty Ltd t/as Right Price Conversions (Appellant) Malak Orabi (Respondent) Representation: Solicitors: JPR Law Solicitors (Appellant) Respondent (Self-represented) File Number(s): 2023/00144362 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 July 2021 Before: J Ringrose General Member File Number(s): MV 22/42157 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on March 2023. The decision related to a Consumer claim. 2. The internal appeal was brought by GNZ Enterprises Pty Ltd against Ms Malek Orabi. 3. For the reasons set out below we have decided to dismiss the appeal Background 1. The following facts are uncontroversial. 2. On 19 September 2023 Ms Orabi lodged an application MV 22/42157 seeking a money order for $33,500 in respect of defective services provided by the appellant to convert a Toyota Tarago into a wheelchair compatible vehicle for her daughter. 3. In 2019 the respondent purchased a Toyota Tarago for the purpose of converting the vehicle to enable transportation of her daughter from day to day. The respondent applied to NDIS to fund the wheelchair conversion of the vehicle and that request took 12 months to be approved. 4. The vehicle was delivered to GNZ Enterprises Pty Ltd trading as Right Price Conversions (the appellant) at Wolli Creek on 21 April 2022. When the vehicle was collected by the respondent on 20 June 2022 she had concerns about the state of the vehicle. The vehicle was inspected by the New South Wales Department of Fair trading on 16 August 2022 with a representative of the appellant present at the inspection. The Senior Automotive Inspector identified 14 concerns. The Department of Fair Trading was unable to achieve a mediated outcome and in a letter dated 1 September 2022 advised the respondent that she has an option of seeking an order through the New South Wales Local Court or the New South Wales Civil and Administrative Tribunal (NCAT). The respondent commenced proceedings on 19 September 2022. 5. The matter was listed for hearing on 17 January 2023 and the written reasons for decision were published on 12 April 2023. 6. The Tribunal made the following orders: 1. The respondent (now appellant) is to pay the applicant (now respondent) the sum of $33,500 being the cost to rectify the work undertaken by the respondent. 2. The respondent is to pay the applicant the sum of $1485 by way of costs representing the cost of expert reports necessary to enable the applicant to establish her claim. 3. Monies payable under orders 1 and 2 are to be paid within 21 days of the date of these orders. 4. Each party is otherwise to pay their own costs of the proceedings 1. The appellant appealed the decision. The Appeal 1. The appellant filed a Notice of Appeal on 10 May 2023. The appeal against a decision made in a consumer claim in the Consumer and Commercial Division is brought in time (see Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c)). Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, with the "leave") of the Appeal Panel: s 80(2) of the NCAT Act. 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 CAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 (Collins v Urban), 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. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged 10 May 2023 with attachments, the appellant's material filed on 5 June 2023 (704 pages), and the appellant's submissions in reply handed to the appeal panel on 5 July 2023. * The Reply to Appeal lodged 17 May 2023 with attachments. The respondent filed her evidence in support of the appeal on 21 June 2023 (155 pages). Grounds of Appeal 1. Counsel for the appellant confirmed at the hearing that the grounds of appeal relied upon are set out at page 696 of the appellant's bundle, in the appellant's written submissions. The appellant's grounds of appeal raise a number of matters within the category of alleged procedural unfairness, which gives rise to questions of law; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. 2. First, the appellant states that the Member made errors on questions of law because 1. Ground 1 - The late receipt of notification from the Department of Transport NSW that the Department intends to cancel the Vehicle Safety Compliance Certificate Scheme Compliance Certificate (the VSCCS compliance certificate) on the day of the hearing without prior notice to the appellant and which the appellant was unable to consider and respond to. 2. Ground 2 - The Member erred by misconstruing the evidence and expert report to the effect that the vehicle had been damaged after leaving the appellant's workshop and making findings contrary to the evidence which were not open. 3. Ground 3 - The Member erred in not making orders which provided the appellant with an opportunity to repair minor matters which manifested after the vehicle left GNZ's workshop. 4. Ground 4 - The Member made errors in questions of law because the respondent misled the Member and failed to disclose that she took the vehicle to an engineer after it left the appellant's workshop and that engineer gave the vehicle a 'clean bill of health'. 5. Ground 5 - The Member descended into the arena and denied the appellant's director procedural fairness by not allowing him to present the case on behalf of the appellant at the hearing and ignored the fact that Mr Zisti was hard of hearing. This ground of appeal is said to be a denial of natural justice and resulted in a miscarriage of justice. 6. Ground 6 - An allegation of bias by the Member was withdrawn. 1. The appellant submits that the appellant's witness statement and experts reports were not afforded proper weight. Had the Tribunal given it the proper weight it would have shown that the vehicle was satisfactory when it left the appellant's workshop and damaged by events which took place after the vehicle left the respondent's workshop. We consider this is the same as Ground 2 above and does not raise an error on a question of law but rather goes to the weight of the evidence and this ground of appeal requires the leave of the Appeal Panel. 2. The appellant also states that the decision was not fair and equitable, was against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing. Leave is required for an appeal based on these grounds. 3. Fresh evidence that is said now to be available are the statutory declarations of Messrs Ziti, Gillies and Wilson. Mr Ziti is a director of the appellant company who had provided a statement to the Tribunal Member at first instance and now seeks to tender an additional affidavit on appeal. Mr Wilson is an expert who inspected the vehicle and is said to have given the vehicle a 'clean bill of health'. 4. The appellant submits that the fresh evidence shows that the vehicle had a clean bill of health and was satisfactory when it left the appellant's workshop. It is submitted the fresh evidence must be admitted as it is a response to the letter from Transport NSW advising that the compliance certificate will be cancelled and that that letter was tendered on the morning of the hearing, over objection and without the appellant being able to properly respond thereto. 5. The appellant submits that the three statutory declarations of Messrs Ziti, Gillies and Wilson constitute significant new evidence which has arisen since the Tribunal hearing and which was not reasonably available at the time the proceedings under appeal were being dealt with (as per cl 12 of Sch 4 to the CAT Act). 6. If leave is granted to bring the appeal, s 80(3) of the CAT Act provides, relevantly: 80 Making of internal appeals … (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. The Appeal Panel will consider the issue of leave to appeal and fresh evidence later in these reasons. Reply to Appeal 1. In the Reply to Appeal filed on 17 May 2023 the respondent states that the decision was correct that there was no denial of procedural fairness and that it is noteworthy to highlight that the appellant has chosen not to expressly endorse or contest the legal principles applied by the Tribunal on the application of the Australian Consumer Law. It is further submitted that there are errors on questions of law, but merely errors of fact, and the appellant requires the leave of the Appeal Panel and leave should not be given and the appeal should be dismissed. Consideration Ground 1 – Denial of procedural Fairness Error of law ground-alleged procedural unfairness Submission by appellant: 1. On the morning of the hearing the respondent tendered a letter by Transport for New South Wales dated 17 January 2023 stating that the 'compliance certificate' in respect of the vehicle will be cancelled and that the vehicle will need to be recertified by a qualified engineer. The Tribunal accepted the evidence which was not previously served on the appellant. 2. In its submissions the appellant states that the Tribunal erred by allowing the respondent to adduce and rely upon evidence not filed or served prior to the date of the hearing. 3. The appellant further submits that the consideration of this evidence is contrary to the principles of natural justice and denied the appellant procedural fairness. 4. No adjournment was offered to the appellant in light of the late production of the evidence of the cancellation of the certificate nor was there any opportunity provided to the appellant to review this evidence, submit evidence to the contrary or question the author of the evidence. 5. At the hearing of the proceedings the Tribunal identified that the additional evidence in respect of the cancellation of the certification was of little value and should not be relied upon by the respondent (refer to the recording at 9.32- 9.48 as transcribed on transcript page TP 496). Since the hearing of the proceedings the appellant has completed a GIPA application which has revealed that cancellation appears to relate to a complaint by the respondent concerning compliance issues with the vehicle. The appellant submits that at the time of the hearing of the appeal the vehicle remains registered 6. As to the late service of the Department of Transport letter, the appellant has provided a transcript of parts of the sound recording of the hearing. The excerpt relied in relation to the tender of the compliance certificate is contained at page two (2) in the recording of the hearing: Member: I have a document which was sent on 5 January which is too late that seems to be a statement and the only other thing I have added to what appears to be some one-page information to a complaint lodged with Transport New South Wales. Ms Orabi: … It's very very relevant Member: Saying something will be cancelled just tells me that some other action may happen in the future which may require some other action to be taken. The problem is that I can't do anything about that in terms of this case. What you're saying to me is that someone has said it will be cancelled I've got no reason to know. 1. The Tribunal noted in the transcript that the document was not filed and served in accordance with directions. At a directions hearing held on 14 October 2022 the respondent was directed to file and serve her evidence by 28 October 2022 and the appellant's documents were to be filed by 11 November 2022 these dates for filing were respectively extended to 18 November 2022. 2. The respondent did not serve the applicant with a copy of the compliance certificate by 18 November 2022, in compliance with the Tribunal's direction. On the respondent's own submission, she was not informed until December 2022 that the certificate would likely be cancelled and she did not receive the letter until the morning of the hearing. 3. In these circumstances, we consider that the letter informing the parties that the compliance certificate would be cancelled was not filed or served until the morning of the hearing on 17 January 2023. 4. We are satisfied that the service of the compliance certificate by the respondent at the hearing did not occur within a reasonable time before that hearing. However, the appellant did not request an adjournment of the hearing; nor did the Tribunal ask if he needed an adjournment. Was there a denial of procedural fairness because the Tribunal did not adjourn the proceedings? 1. The issue of when a Tribunal Member should offer a party an adjournment has been considered by Appeal Panels in Roach v Swain [2021] NSWCATAP 258 and in Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73. These decisions refer to the judgement of Basten JA in Italiano v Carbone & Ors [2005] NSWCA 177 particularly at [105] where his Honour stated: '105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions".' (Emphasis added') 1. In the CAT Act the obligation upon the Tribunal to afford a party an opportunity to be heard is in terms that the Tribunal "is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" (s 38(5)(c)). 2. It was the responsibility of the respondent to comply with the timetable for service of the compliance certificate; she was in default in doing so. It was incumbent upon the Tribunal to make a ruling about the late receipt of the potential cancellation of the compliance certificate and whether this would have an adverse effect on that appellant's ability to be in a position to consider and address it. 3. However, on balance the Appeal Panel is not of the view that the tender of the compliance certificate should have resulted in an adjournment, even if sought, being granted. 4. This is because we consider that the compliance certificate, although relevant, is of little weight and did not persuade the Tribunal in determining the ultimate question whether there was a breach of the consumer guarantees enshrined in the Australian Consumer Law. The fact that the compliance certificate was given little weight is acknowledged in the appellant's own submissions at 6.5: "at the hearing of the proceedings the Member identified that the additional evidence in respect of the cancellation of the certification was of little value and should not be relied upon by the respondent." 1. We respectfully agree with the Tribunal's assessment and the appellant's submission that the additional evidence was of little value. 2. Despite the late tender of the cancellation of the compliance certificate, and even if this gave rise to procedural unfairness, we have decided that this procedural unfairness should not result in the decision being set aside. This is because the appellant has not shown that there was a possibility that his claim would have succeeded if it had been given an adjournment to consider and respond to the evidence because the decision was not made based on the compliance certificate, but rather the Tribunal decided the matter because the expert evidence of both parties supported a finding that the vehicle conversion suffered from a major failure under s268 of the Australian Consumer Law. 3. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at paragraph 37: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' 1. In Stead v State Government Insurance Commission (1986) 161 CLR 141 ('Stead') the plurality stated at paragraphs 9 ,10 and in the first sentence of 11: 'That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. 1. Following the principles enunciated in Stead, we conclude that the "further information" in this case would not have made any difference. At its highest, the appellant states that it was denied an opportunity to investigate or reply to the notice of cancellation. The appellant submits that the certificate, when analysed on its face, shows that there is discontent with the way the certifier carried out the certification and alleged failure by the said certifier, Mr Gillies, to conduct further tests but no complaint is made of the vehicle itself. It is also submitted that the certificate is not cancelled as at the date of this hearing, and has not been cancelled between the hearing at first instance and the appeal. 2. The compliance certificate was considered by the Tribunal but ultimately given no particular weight. The written reasons of the Tribunal demonstrate that the expert evidence tendered by the respondent is capable of establishing that the conversion was inadequate and the Tribunal reached the conclusion based on an analysis of both parties' experts' reports regardless of the letter from Transport NSW that the compliance certificate may be cancelled in future. 3. In the written reasons for decision the Tribunal found as follows: 95 In the present case the Tribunal is satisfied on the basis of expert reports provided by the applicant that the works were not fit for purpose created an unsafe hazard including injury to the wheelchair passenger due to movement of the chair and or movement of the third row of seats and also potential exposure to exhaust gas fumes. Although the respondent sought an opportunity to remedy the defects, that offer was limited to defects which the respondent believed were necessary. 96 The expert reports provided on behalf of the applicant clearly indicate that rectification can only occur if the whole of the installation is removed and redone which takes the matter beyond the scope of remedy within a reasonable time to make the works fit for the original purpose. 97 The Tribunal is satisfied that by reason of the operation of section 268 the respondent has lost any right to attempt to rectify the works particularly where rectification requires total removal and rebuilding of the works in order to achieve compliance. 1. The material filed in the appeal by both parties included reports from various experts. The expert evidence addressed the faults that were inherent in the wheelchair conversion. The appellant did not show how the Tribunal's finding that the wheelchair conversion was defective, based on weighing the expert evidence from both sides, miscarried. This was a problem that did not arise from the letter by Transport NSW concerning the possible cancellation of the compliance certificate being admitted into evidence. It was based on the Tribunal's conclusions reached at [69] and following that Mr Huseyn Hassan found many faults in the vehicle; including but not limited to 1. Poor body gaps and refinishing to the off-site rear bumper bar; 2. Faulty bodywork import body gaps refinishing to the nearside rear bumper bar; 3. Faulty bodywork and poor body gaps refinishing to the rear beaver panel; poorly fitting and uneven trim finishes to the rear end; 4. Wheelchair docking clamps did not engage the wheelchair safely and securely; 5. Underbody reinforcement braces were not securely and correctly fitted and were unsafe; 6. Rear beaver panel rear bumper bar was not sealing properly when closed and was dangerous as exhaust fumes were entering the vehicle cabin. 1. There were other faults, too many to mention in these written reasons. 2. We therefore conclude that the findings that led the Tribunal to order a refund were overwhelmingly reached by considering the expert reports. 3. While there is a mention of the compliance certificates at paragraph [72] of the written reasons there is nothing in the Tribunal's reasons that suggest that the compliance certificate was material to the outcome. At the hearing of the appeal, the appellant was unable to show any reason why the contents of the letter from the Department of Transport indicating that the compliance certificate could be cancelled, might have changed the outcome or that the Tribunal placed any weight on it. Instead he came to the conclusion at [95] based on experts reports. Should fresh evidence be admitted. 1. The fresh evidence which the appellant seeks to rely upon is an affidavit of the appellant's director as well as two engineers which is claimed to constitute "fresh evidence". We disagree. The evidence comprises a more detailed description of the events which occurred prior to the Tribunal hearing, as well as mechanical notes and evidence. 2. A succinct definition of "fresh evidence" is as follows: 3. "The meaning of that [fresh evidence], as laid down by Hill J. in Timmins v Timmins 120 L.T. Rep 544 [1919] pp 75, 80, is "evidence" of something which has happened since the former hearing or has come to the knowledge of the party applying since the hearing and could not by reasonable means have come to his knowledge before that time." See Colchester v Peck [1926] 2 KB 366, per Avory J at 375. 4. In Lawless v The Queen (1978–1979) 142 CLR 659 at 669; [1979] HCA 49 Stephen J said: "The concept of fresh evidence, as evolved in the cases and in particular in Ratten v The Queen (1974) 131 CLR 510, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If, on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused "bearing in mind his circumstances as an accused, … could reasonably have been expected to have become aware and which he could have been able to produce at the trial" it will not be fresh evidence. ... So it is that it is evidence which is "actually or constructively available" to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence." 1. Stroud's Judicial Dictionary of Words and Phrases (5th ed) defines "fresh evidence" by reference to the High Court of Justice decision of Johnson v Johnson [1900] p. 19, in which the President explained at 21: "But it is necessary that magistrates should clearly understand what "fresh evidence" means, though, in my view, there is no real doubt about it. It means practically the same sort of evidence as that upon which a new trial would, in the ordinary course, be granted: it must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come to his knowledge before that time. It must amount to what was called in the old forms of pleading res noviter ad notitiam perventa. It is altogether a mistake to suppose that "fresh evidence," within the meaning of the Act of 1895, means or includes evidence which could have been called, but which was not in fact adduced, at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, based on evidence which might have been tendered in the first instance. I have no hesitation in saying that to the words "fresh evidence" in s. 7 must be assigned the limited meaning and scope which I have indicated." 1. Turning first to the affidavit of Mr Zisti, it clearly does not include evidence that the deponent of the affidavit could not have provided at first instance. Mr Zisti provided a statement to the Tribunal, the second affidavit is an attempt to provide a more fulsome account, now drafted by the appellant's solicitor. There is nothing in the material that could not have been adduced at first instance. 2. In respect of the Gillies' affidavit, Mr Gillies was not a witness who was called by the appellant at first instance. Mr Gillies now provides an account of why he drafted the compliance certificate in the manner that he did. His evidence does not go to anything that "happened since the former hearing or trial" or is evidence "that has come to the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time". 3. The evidence to which the appellant refers in relation to this aspect of the appeal appears to be additional evidence, not fresh evidence, and the Appeal Panel is not persuaded that the evidence upon which it now wishes to rely for the first time was not reasonably available at the time of the hearing at first instance: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Ground 2 - The Tribunal erred by misconstruing the evidence and expert report to the effect that the vehicle had been damaged after leaving the appellant's workshop and making findings contrary to the evidence which were not open 1. The appellant submit that the Tribunal decision was not just and equitable because the Tribunal gave the wrong weight to the documents it presented and the expert evidence that was tendered by the appellant below. 2. Consistently with the approach to appeals brought by self-represented appellants identified in Cominos v Di Rico [2016] NSWCATAP 5 at [12] – [13], we consider that this ground of appeal does not raise a question of law, but a question for which the leave of the appeal panel is required. The appellant submits that its expert evidence was not afforded its proper weight. 3. For the reasons that follow we are not of the view that the decision was against the weight of evidence or that the decision was unreasonable and unjust. 4. The appellant's submissions are contained at paragraphs 7.1 and following. In summary it is submitted that 1. the respondent's vehicle was fit for purpose and was of merchantable quality upon being collected from the appellant's workshop by the respondent; 2. the respondent's vehicle had been inspected and certified by Dr Gillies a qualified engineer prior to being collected from the appellants workshop; 3. the respondent's vehicle was fit for purpose and was not defective as found by John Wilson a qualified engineer; 4. any problems with the respondent's vehicle were caused by repeated disassembly and reassembly of the vehicle after it was collected by the respondent. 1. The Tribunal must have inferred that defects existed when the vehicle was collected from the appellant's workshop and the appellant submits that this finding was not open to the Tribunal. 2. It is submitted that "there will be an error of law if a finding is made that was not open on the evidence." 3. As the appellant is represented by counsel we have taken this submission to mean that this is a no evidence ground rather than a "against the weight of evidence" ground. A finding of fact when no evidence was available to support that findings is an error on a question of law. 4. For the reasons that follow we are not of the view that there was no evidence to support a finding that the appellant carried out defective work and that the evidence supports a finding that the appellant's work was defective and that the defects were present when the vehicle was collected. 5. The appellant tendered the report of Mr Black but submits that the report was ignored and in particular the opinion that the vehicle was dismantled after it left the appellant's workshop. Mr Black's conclusions are found at page 103 of the appellant's bundle. Critically the appellant's expert agrees the vehicle is damaged but opines "the damage is most likely to have occurred due to the incorrect operation of the modified parts and part dismantling and reassembling of the component as identified in the applicant's supplied images". This conclusion is not supported by reasoned explanation and the "supplied images", presumably photographs referred to by Mr Black, purportedly supporting this conclusions, are not attached to the report. There is no explanation how "dismantling and reassembling" the vehicle possibly could have caused defects such as the "wheelchair docking station not correctly secured" and "securing components mounted off centre", or "underbody welds exposed and not adequately treated and covered to prevent corrosion" to name but a few. 6. In contrast, the respondent's expert opinions are supported by reasoned explanation. The first report, prepared by Mr Ryan was prepared eight weeks after the vehicle was collected from the respondent. Mr Ryan is a Senior Automotive Repairer for the Department of Fair Trading, he inspected the vehicle while all parties were present. The 13 defects reported are set out in page 119 of the appeal bundle: 1. wheelchair docking station not correctly secured and vehicle to floor ramp; difficult to lock and unlock chair; floor ramp electrical Control Panel not secure; 2. wheelchair securing components mounted off centre when measured side to side of the floor ramp; wheelchair anchor components poorly fitted using a variety of screws and bolts; 3. engine exhaust pipe contacting vehicle floorplan, chassis at idle and while driving; exhaust pipe exists to the driver side of the vehicle under driver side rear door window; the exhaust pipe has been re-routed to accommodate the wheelchair conversion; 4. third row folding seats excessive movements when the folded position; allows excessive movement when accelerating and breaking with potential to contact the wheelchair passenger with significant force; seat flops backwards and forwards; restricts the wheelchair passenger freeze space and movement; mounting points do not appear secure, bolts not fully seated to the bottom of shank, no lock nuts used to secure bolts; pivot pins showing signs of wear during the limited use of the vehicle to date; 5. during road test rear body creaking evident on cornering and uneven road surfaces: 6. underbody welds exposed and not adequately treated and covered to prevent corrosion. 7 rearmost interior quarter panel side trim is not secure exposed via metal inside rear quarter panel areas under trim box; 8. corrosion on various bolts screws used throughout the tailgate area and other areas that have been modified; 9. wheelchair access door hinge and locking mechanism are not automotive grade stiff to operate hard to access with wheelchair docking station no door check strap or bump stop fitted; 10. seals around the wheelchair access door and tailgate aperture poorly fitted and not sealing; 11. wheelchair access door, tailgate, bumper bar and guards not aligned. 12. Wheelchair access door and tailgate in a trim alterations uneven. Wheelchair access door and tailgate in a trim alterations uneven; 13. paint overspray on several components, panels and trends; 14. the outer edges of the rear tires show excessive wear. 1. The respondent tendered the report of Mr Hussy Hassan Engineer of National Assessing and Engineering dated 29 August 2022. This evidence establishes 13 defects contained at page three of the report and the conclusion at page 156 of the appellant's bundle "the workmanship provided by Right Price Conversions is extremely poor and unsafe". 2. In our view there is no tension between the parties' experts that remains to be resolved. There clearly is overwhelming evidence from two experts that supports the finding of the Tribunal at [95] that the works are not fit for purpose and that the conversion was of extremely poor quality. 3. The ground of appeal is dismissed. Ground 3 – the Tribunal erred in not making a work order. 1. Once satisfied that the respondent has breached the Australian Consumer Guarantees the Tribunal may make a money order or a work order to compensate the respondent. The appellant states that this is an error on a question of law and that the discretion of the Tribunal miscarried. In particular the Tribunal ignored the offers by the appellant to rectify the vehicle. 2. We have had regard to the correspondence sought to be relied upon by the appellant. The appellant made one offer to rectify the vehicle. In an email dated 29 September 2022 the appellant wrote as follows. "As discussed your concerns were brought to the attention of Mr George Zisti the director at Right Price Conversions. Mr Zisti advised through his solicitor that he was "prepared to arrange an independent inspection of the vehicle's modification and will compare the respondent's independent report with his report. Following the review Mr Zisti will rectify any commonly identified workmanship issues at no cost." 3. This email was sent six weeks after both parties inspected the vehicle at the Department of Fair Trading with the assistance of Richard Ryan Senior Automotive Inspector who set out the 13 defects described above. 4. The appellant submits that the Tribunal erroneously made an award of damages to the respondent in circumstances where the appellant was not provided with a reasonable opportunity to rectify any perceived issues with the vehicle within a reasonable timeframe and that it was not open to the Tribunal to make an award of damages in favour of the respondent. 5. However as it is noted earlier, Mr Black who is the appellant's expert denied that any of the defects were the responsibility of the respondent and after the inspection by Mr Black there was no offer to rectify any defects and there were no commonly identified defects. No offer to rectify was made by the appellant as no defects were agreed to. 6. We are of the view that the offer made on 29 September 2022 was not a genuine offer to rectify or certainly as there were no "commonly identified defects" and that the Tribunal was not in error when he made a finding that "by reason of the operation of s268 [of the Australian Consumer Law] the respondent has lost the right to attempt to rectify the works particularly where rectification requires total removal and rebuilding of the works in order to achieve compliance". 7. The Appeal Panel cannot make a work order simply because a party orally submits at the appeal hearing that such an order should be made, unless it has established either that there has been an error on a question of law; or that an error exists for which leave to appeal should be granted under cl. 12 of Sch. 4 of the NCAT Act based upon the decision of the Tribunal at first instance to award damages for the cost of rectification rather than a work order that the appellant be permitted to effectively rebuild the vehicle. 8. At [95]-[97] of its Reasons, the Tribunal did justify the making of a money order in lieu of an order that the whole of the installation be removed and redone which the Tribunal found to be beyond a scope to effectively be carried out by the appellant. The reasoning of the Tribunal is consistent with the principles regarding Leung v Alexakis [2018] NSWCATAP 11 and we are not satisfied that the discretion miscarried as no reference has been made that an error on the question of law has been established and this ground of appeal is dismissed. Ground 4 - the respondent misled the Tribunal 1. The submissions in support of this ground of appeal are contained in the written submissions in the appellant's bundle at page 680 "affidavit of John Wilson dated 2 June 2023". The Appeal Panel must consider whether the Wilson affidavit should be admitted as "fresh evidence". The evidence now sought to be relied upon is attached to the affidavit of the appellant's solicitor Peter John William Huntington sworn on 9 May 2023. Fresh evidence is admitted only by leave of the appeal panel. 2. For the reasons that follow we decline to admit the Huntington/Wilson affidavit and this ground of appeal must fail. 3. It is entirely uncontroversial that the respondent had sought to obtain an expert report from an engineer by the name of Mr John Wilson of AKZ Engineering. Mr Wilson was approached by the respondent to prepare an expert report. He initially agreed but upon inspection changed his mind because "there was nothing wrong with the vehicle". The appellant submits that this information is 'fresh evidence' and should now be admitted. It is submitted that the Tribunal erred because he was 'misled' because the respondent did not disclose these events at the hearing. We disagree, the respondent did "disclose" Mr Wilson's comment. Indeed it formed part of the written reasons for decision. 4. The respondent included a Google review about Mr Wilson's business, AKZ Engineering in her evidence (see at page 223 of the appellant's bundle). The respondent stated that she felt aggrieved because she had travelled from Canberra to Queanbeyan to obtain an expert report but upon arriving the engineer refused to provide her with a report. She provided a negative Google review. In answer to the Google review Mr Wilson stated "I did not promise to provide you with a report until I inspected the vehicle you brought it to Queanbeyan for inspection. I inspected the vehicle at no charge indeed a report was unnecessary because the vehicle was not unsafe or non-compliant." 5. The appellant seeks to file fresh evidence in the form of an email provided by John Wilson. In the email Mr Wilson merely confirms that he did not provide a report because he did not think the vehicle was unsafe. 6. The Tribunal dealt with this topic at paragraph [74]: "it is clear that no report from Mr Wilson has been provided by either party and accordingly the Tribunal cannot draw inferences either way." 7. An email from Mr Wilson to Mr Zisti refers to the vehicle, but it is not in the form of an expert report or a signed statement. Mr Wilson confirms to Mr Zisti that he refused to write a report. We entirely agree with the summary of the evidence as stated by the Tribunal. Not only was the adverse Google review included in the evidence, the appellant made submissions, brought it to the Tribunal's attention but the Tribunal found that in the absence of a report from Mr Wilson no inference could be drawn. At its highest, could such an inference be drawn it would be that a report from Mr Wilson would not have assisted the respondent's case. 8. Insofar it is necessary to make a ruling we decline to admit the affidavit of Peter John William Huntington. As the Google review was squarely dealt with at the hearing of the matter it was clear that the comment by Mr John Wilson of AKZ Vehicle Engineering that he refused to provide a report because there was nothing wrong with the vehicle was squarely dealt with. 9. Given that Mr Wilson never provided a report, his comments are not relevant to the issues in dispute and therefore not admissible. The appellant elected to obtain an expert report from Mr Black and that expert report was considered. Further, we are not satisfied that Mr Wilson's email comments are new evidence in the sense required by cl 12 of Schedule 4 of the NCAT Act. Mr Wilson's comments were admitted into evidence and were considered at the hearing. 10. This ground of appeal must fail. Ground 5 - Denial of procedural fairness 1. This ground of appeal is based on the Tribunal's requested generally that only one person speak on behalf of each party. To the extent the appellant relies upon contentions concerning the manner in which the hearing was conducted or aspects of the conduct of the hearing, except to the extent that there is a general contention, such contentions must be rejected. 2. The parties provided transcript. The section relied upon by the appellant is contained at page 2 Member : Mr Zisti is it? Mr Zisti: And Mohammed Lashani Member: No, you've heard what I just said. Mr Zisti. Only one person can speak. Mr 60: I will let Mohammed speak because my hearing is not 100%. Member: okay. All right 1. The transcript then shows that Mr Lashani is speaking but for the purpose of this ground of appeal we have assumed that Mr Zisti says Mr Zisti: So because if there's any questions I might not hear them properly. 1. The transcript continues at page 4: Member: So who is going to do the speaking? Who was going – Mr Lashani: I beg your pardon Member: If it helps you, sit back behind, if it helps you from being encouraged to do it. Mr Zisti: You want me to sit here, your Honour? Member: Well, I will get you to sit behind if you interrupt anything in the future when I ask a question. Mr Zisti: I will let Mohammed speak because of my hearing. Member: Yes, I think you should. 1. The Tribunal invited both parties to nominate one speaker. Mr Zisti explained he is hard of hearing but brought along a person who is authorised to speak on the respondent's behalf. We are informed Mr Lashani is a longstanding employee of the respondent. We note that it is Mr Zisti who suggests Mr Lashani present the case. 2. It is the appellant's contention that Mr Zisti should have been offered a hearing loop and that in the absence of such an offer there was a denial of procedural fairness. Having regard to this transcript we do not see that these circumstances reveal that a fair-minded observer might reasonably apprehend that the Tribunal did not conduct the hearing in a manner that was unfair to the appellant. 3. Hearing loops are available readily at the request of the applicant. The information is readily attained at the NCAT website and arrangements for a hearing loop can be made at very short notice. No such request was made and Mr Zisti appeared content to let Mr Lashani speak on his behalf. Critically the appellant has not particularised how the appellant was disadvantaged because Mr Lashani spoke instead of Mr Zisti. 4. We consider that "the focus of an enquiry about procedural fairness is on avoiding "practical injustice". It is not 'an abstract notion' (referring to Raslan v Pan [2015] NSWCATAP 12 at [28], which cited Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs: Ex part Lam (2003) CLR 1 at [37]) and that "It is therefore relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case" (citing Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145). 5. We consider that there is no procedural unfairness. In any event the appellant has provided no submission or evidence how the failure to offer Mr Zisti a hearing loop "would have made any difference to the outcome of the case." 6. This ground of appeal is dismissed. Conclusion 1. We are not satisfied that the appellant has established an error on a question of law. In respect for any ground for which the leave of the Appeal Panel is required, we note that a decision is "against the weight of evidence" when the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal could have made. 2. We do not grant leave to appeal on any of the grounds raised by the appellant. We are not satisfied that the grounds involve an issue of principle, a question of public importance, or 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. 3. We are not satisfied the decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. No basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the appellant, and we do not grant leave to appeal in accordance with the principles set out in Collins v Urban. Orders 1. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2023