Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hadchiti v Schepis [2024] NSWCATAP 11 Hearing dates: 22 January 2024 Date of orders: 29 January 2024 Decision date: 29 January 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member R C Titterton OAM, Senior Member Decision: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. Catchwords: APPEALS – Australian Consumer Law – no question of principle Legislation Cited: Australian Consumer Law, s 54 Civil and Administrative Tribunal Act 2013 (NSW), s 80, Sch 4, cl 12 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Blacktown City Council v Hocking [2008] NSWCA 144; (2008) Aust Torts Reports 81-956 Buckland v Goodwin [2009] NSWCTTT 685 Chapman v McLaughin [2016] NSWCATAP 212 Collins v Urban [2014] NSWCATAP 17 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Khan v Kang [2014] NSWCATAP 48 Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 McGinn v Barilla [2018] NSWCATAP 85 Pate v Chan [2010] NSWCTTT 221 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Sedghi v Liew [2024] NSWCATAP 6 X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 Texts Cited: Codex Justinian Corpus Juris Civilis Category: Principal judgment Parties: Bernadette Hadchiti (Appellant) Albert Schepis (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2023/00316921 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 05 September 2023 Before: M Hung, General Member File Number(s): GEN 23/29952 Decisions under appeal REASONS FOR DECISION Summary 1. The appellant appeals from the decision of the Consumer and Commercial Division of the Tribunal (Tribunal) in matter GEN 23/29952 of 5 September 2023 (Decision). 2. The appellant had filed an application against the respondent under the Australian Consumer Law (ACL). The appellant had initially sought an order that she be paid $8,042.40. At the hearing, she sought a money order for $6,905.82. This amount was a refund of $5,924.00 being the monies paid to the respondent for planter boxes and outdoor seats and $981.82 being the cost of removing those items from her home. 3. For the reasons given in the Decision, the appellant's application was dismissed. 4. For the following reasons: 1. in so far as the appeal raises a question of law, the appeal is dismissed; 2. in so far as the appeal raises other errors, leave to appeal is refused. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (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 at [13], without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 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 NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Appellant's materials Notice of Appeal 1. In her Notice of Appeal, the appellant states her grounds of appeal as follows: It was wrong for the Tribunal to use more fraudulent statements over receipts and tangible evidence about wood (pine) & paint used to prove they were what respondent claim to be. It was wrong the Tribunal didn't consider the Baiting Techniques used to get me to buy; quote was illegible, hinges missing were not in our verbal agreement: email attachment for quote had the wrong attachment! Quote in Messenger was obscure, indecipherable, doesn't match our verbal agreement (see attached original copy submitted by respondent). It was wrong the Tribunal didn't consider the "mode of operating" of the respondent at his son Baiting Technique and avoiding accountability, even though product is less than one year old started to show defects. I just reported it one day after past delivery and not as son claim 16 months from past delivery. It was wrong not to take the guarantee as per consumer law into consideration, even for cosmetic finish (which is not the case). (underlining as in original; grammatical errors as in original) 1. In her Notice of Appeal, the appellant stated that she was seeking leave to appeal. We pause here to note that at the appeal hearing the appellant confirmed that she was not submitting that her appeal raised a question of law. We will return to that matter in the Consideration section of these reasons. 2. In her Notice of Appeal, the appellant stated that she was seeking to appeal for three reasons. 3. The first reason was that the Decision was not fair and equitable. Here the appellant stated: Warranty/guarantee was not considered even for cosmetic finish. Tribunal considering photos are not enough to show "goods are not of acceptable quality" & "not fit for all the purpose for which goods of that kind are commonly supplied". Breaching the warranty (section 54(1) of the ACL); goods are not acceptable quality. I have contacted more than 50 Tradies only one gave me quote because according to them they are not worth restoration or painting (poor pine [??] wood panels and paint). It is not in general public interest that this self alleged professional keep misleading other customers, baiting them, and playing tricks by charging verbal agreements, blocking me from leading reviews on his page, so others can be aware of his motor of operandi. Baiting technique were not considered because my personal statement wasn't use when I chose, distracted by my own ignorance, and the implication of using respondents own bundle. Respondent has shown no receipts or other evidence to support his claim of the quality of the Pinewood used (is it suitable?) Not all Pinewood are of similar good quality. 1. The second reason was that the Decision was against the weight of the evidence. In her Notice of Appeal, the appellant explains she used the respondent's bundle of materials at the hearing. In answer to the question "What evidence should the Tribunal have given more weight to? Why?", the appellant responds: Tribunal should have put more weight on respondent's own testimony saying "Bowing panel are not repairable". Tribunal should ask for evidence that pain on pine used are fit for purpose and of durable quality, eg receipts for materials used! Tribunal should have put weight on the Baiting Techniques used and the Tricks that was used with me to buy poor quality, flimsy, short-lived products. 1. The third reason was that there was significant new evidence now available that was not reasonably available at the time of the hearing. 2. The new evidence sought to be relied on was a quotation of a business known as Hire A Hubby Chipping Norton dated 5 October 2023. The quotation (AQN-00200.2) consisted of two components. The first was the repair of the planter boxes and benches, being $4,500.00. The second component was for the construction of new planter boxes, being $13,500. These figures are inclusive of GST. 3. In answer to the question "Why was this evidence (including documents) not available at the time of the hearing?", the appellant states: I have no experience on what the Tribunal needed beside photos. I have contacted experts for reports. I was told that they only work with lawyers. I contacted lawyers and was advised they would charge me more than the worth of the products (more than $6K). Appellant's other documents 1. A 110 page bundle of documents was filed by the appellant on 29 November 2023. These documents included 5 pages of submissions for the appeal, the evidence before the Tribunal and, importantly, a transcript of the Tribunal hearing. 2. In her written submissions, in summary, the appellant emphasised that the Member stated in the Decision: I have taken the above submissions from both parties into consideration. Unfortunately I am unable to be satisfied from the photographs relied upon by the applicant that the outdoor planter boxes and the outdoor seats supplied by the respondent are not of acceptable quality because they are not acceptable in appearance and finish (cf section 54(2)(b) of the ACL), nor am I able to be satisfied from the photographs relied upon by the applicant that the outdoor planter boxes and the outdoor seats supplied by the respondent are not free from defects (cf section 54(2)(c) of the ACL). (Emphasis added) 1. The appellant elaborated on this matter in her oral submissions. She submitted that there was an inconsistency between the finding of the Member which we have underlined, and his decision not to grant any relief under the ACL. 2. In her submissions the appellant also, by way of a high level summary: 1. questioned the veracity of the respondent's evidence; 2. submitted that the Tribunal ruling to allow the respondent to be represented by his son placed her at a disadvantage; 3. submitted that the legal burden placed on her to prove her case had been met and discharged by the new quotation AQN-00200.2; 4. appears to be suggesting that she was misled by the respondent prior to entering into the contract; 5. submitted that the respondent's quotation was illegible, indecipherable and not transparent; 6. states that a matter of public importance was raised relating to the administration of public justice, that being that the respondent had apparently blocked her from leaving a review on his "page" (presumably reference to the respondent's Facebook page or website) which means that the public could not find out if "there were others who had been baited like myself". 1. The submissions then set out the appellant's version of events, in respect of which she makes a number of gratuitous remarks about the respondent whom she variously describes as "deceptive", "abusive", "vicious", "cruel", "cunning", "ruthless" and "unethical". 2. The submissions culminate in the following conclusion: CONCLUSION I am challenging the foundational assumption that the onus of proof in NCAT lies solely with Applicant. The Respondent share[s] the responsibility of providing evidence: Members failed to check the Veracity of Respondent's evidence (eg: Receipts, quality of wood). This would have lead to a more collaborative and less adversarial approach in my case where respondent assist in evidence-gathering process. This potentially could make the process fairer for consumers. Failing to respect my rights without the undue burden of proving defects by professional, would render my case not worth it and, caused me great disadvantage. This would align with Social Justice principles, ensuring that vulnerable customers are not disadvantaged by procedural requirements in accessing their rights. The decision should reflects Moral and Ethical Stance that emphasizes understanding and respect for vulnerable consumers. The decision have Financial Implications for Consumers, potentially requiring more resources to assist them in the evidence - gathering process. Impact: this approach can significantly benefit the most vulnerable consumer, reducing the risk of being ripped off, cheated and denied necessary Justice due to procedural complexities. Transparency and accountability from NCAT in its dealing with Applicants, ensuring that the Tribunal fulfils its mandated obligation and duties of Care. Comparative Analysis: this decision may set a benchmark for other cases, encouraging more supportive and less burdensome approach in similar administrative process. In summary, the decision represents a significant shift in the legal interpretation of the "onus of proof" in consumer matters, with far-reaching implication for Legal precedents, social Justice, and the operational Ethics of NCAT which is supposed to be enabling, not arguing in all dealings with Applicants. NCAT is not intended to assume all consumers are able to identify Legal issues, prove and argue why products are not of acceptable quality. The most vulnerable consumers with Legal difficulties, who have little if any legal support, are the worst in this type of adversarial system. Ration Decidendi: or the reason and rational for the decision, onus of proof is not only on the Applicant to demonstrate violation of Consumers Legislation. Fair Trading NSW must enforce Australian Consumer Law for Consumers! I am Seeking full Refund for products and Expenses. (emphasis added) 1. We have set out the appellant's conclusion in its entirety. That is because it demonstrates the appellant's fundamental misunderstanding of the role of the Appeal Panel when considering appeals. 2. Regrettably that misunderstanding continued during the appeal hearing when we explained the role and function of the Appeal Panel on an appeal. Respondent's materials Reply to Appeal 1. The respondent filed his Reply to Appeal on 25 October 2023. Suffice it to say, he opposes an appeal being granted, and considers that the Decision was correct for the reasons stated. 2. The respondent submits that the appellant has not raised or identified any "mistakes of law", and opposes any grant of leave to appeal. Respondent's other documents 1. The respondent filed a 110 page bundle of materials on 12 December 2023. In addition to the transcript of the Tribunal and the evidence before the Tribunal, the respondent also included a statement dated 8 December 2023. 2. This "statement" is actually the respondent's submissions. Where necessary, we will refer to these submissions in our Consideration below. Appellant's submissions in Reply 1. On 18 December 2023, the appellant filed a response to the respondent's submissions and documents. In large part, these submissions are repetitive of the appellant's submissions filed on 29 November 2023. 2. In these submissions, the appellant: 1. seeks costs; 2. submits that she was denied procedural fairness, by reason of her statement not being accepted by the Tribunal; 3. asks the Appeal Panel to accept the new evidence she wishes to rely on; 4. repeats gratuitous remarks about the respondent's character; 5. asks the Tribunal to: do what [it] is meant to do: to be not formal and mediate, share responsibility and set a precedent that support[s] simple, vulnerable customers who are not legal experts and process. 1. disputes the Tribunal's decision as: My case was already proven, however Member M Hung needed me to discharge the evidence! evidence was in photos as per tradies and professional opinions: that is all! (error of judgment). 1. In conclusion, the appellant states: Product failed to meet a warranty! I am allowed to produce new evidence and the evidence I submitted have equal weight to the one of respondent to progress my case further! … I am not mistaken to raise the issue of burden to prove consumers cases in general. I am drawing the attention to NCAT role in supporting both parties in negotiating and resolving dispute. I am seeking that the Appeal be seriously considered and complete what the Tribunal finished and left room for. The Decision 1. Before considering the grounds of appeal, it is appropriate to summarise the Decision. 2. The Decision commences with the Member's grant of leave for the respondent's son to represent the respondent at the hearing. The Decision simply records that oral reasons had been given for that decision, and observed that the appellant had been offered the opportunity to have an adjournment if she wished to represented by someone. 3. The oral reasons appear at p 6 of the transcript. They follow a lengthy discussion of the issue between the respondent's son, Mr Andrew Schepis, and the Member on pp 2 to 6. The oral reasons were relevantly as follows: … So in relation to the respondent's application to be represented in GEN 23/29952, I refer to section 45(1)B of the Civil and Administrative Tribunal Act. The section says "A party to a proceeding in the Tribunal may be represented by another person, only if the Tribunal grants leave for that person to represent the party". In the same section, subs 3 says "The Tribunal may, at its discretion, grant or refuse leave under section (1)B. Mr Andrew Schepis has made submissions to represent the respondent, Mr Albert Schepis, in this matter, on the basis that Mr Albert Schepis finds it difficult to articulate much of the complex legal issues in this matter. Ms Hadchiti refused or opposes that application on the basis that she will be disadvantaged if Mr Albert Schepis is allowed representation in the matter. I offered the possibility of an adjourment to Ms Hadchiti to overcome that significant disadvantage, so that Ms Hadchiti can also go and seek representation if she wishes to do so. Ms Hadchiti refused that opportunity. On that basis I do not consider that this is an appropriate opportunity - I do not consider that there is any un-overcomable disadvantage in granting leave to Mr Albert Schepis to be represented by his son, Mr Andrew Schepis. So leave is granted to the respondent to be represented by his son, Mr Andrew Schepis, in this matter for the purpose of today's hearing. 1. The next issue discussed in the Decision were the documents before the Tribunal. The Decision states: Turning to documents, the applicant filed a bundle of documents with the Tribunal on 5 July 2023. However, it became apparent at the hearing that the applicant's bundle was not served on the respondent because the applicant did not have (nor was she able to obtain from the respondent) the respondent's mailing address. When this came to light, the applicant voluntarily offered to not rely on the bundle she filed, but instead, to rely on the respondent's bundle of documents. The respondent relied on a bundle of documents filed and served on 7 August 2023, which I have marked "Exhibit A" for identification purposes, and I have kept with the Tribunal file. 1. The Decision then sets out the Member's findings as to jurisdiction. He concluded that as the applicant was a "consumer", the respondent a "supplier" and the application a "consumer claim", as all those terms were defined in the ACL, he was satisfied that the Tribunal had jurisdiction to hear and determine the matter. 2. The Decision then sets out the relevant provisions of the ACL, namely ss 54(1), (2) and (3). 3. The Decision then summarises the appellant's claims, namely that she alleged that the outdoor planter boxes and the outdoor seats supplied by the respondent were not of acceptable quality because they were not acceptable in appearance and finish, and not free from defects. The Decision notes that the appellant submitted that the outdoor planter boxes and the outdoor seats suffered from the following issues: 1. "bowing", being the phenomenon of the wooden surface becoming curved, most likely as a result of moisture in the wood; 2. "paint bubbling", for which the appellant relied on photographs on pp 100 and 101 of Exhibit A; 3. "wood splitting", for which the appellant relies on photographs on pp 89, 92, 96 and 102 of Exhibit A; and 4. "knotting", for which the appellant on the photograph on p 98 of Exhibit A. 1. The Decision then states: The [appellant] gave evidence that she has spoken with a number of carpentry experts, who have said to her that the above issues are caused by, amongst other things, first, the staples are not galvanised; secondly, the paint applied is not weather proof; and thirdly, the wood used is not suitable for outdoor furniture. The [appellant] did not put anything in writing to confirm these opinions, therefore, I place no weight on these evidence. The [appellant] also gave evidence that when compared with other outdoor furniture she has at her home, the outdoor planter boxes and the outdoor seats made by the respondent have deteriorated very quickly. Again, I have no evidence in relation to the durability of the applicant's other outdoor furniture, therefore, again, I place no weight on this evidence. 1. The Decision then summarises the respondent's submissions in relation to each of the four claims. 2. The Decision then states the Member's conclusions: I have taken the above submissions from both parties into consideration. Unfortunately I am unable to be satisfied from the photographs relied upon by the applicant that the outdoor planter boxes and the outdoor seats supplied by the respondent are not of acceptable quality because they are not acceptable in appearance and finish (cf section 54(2)(b) of the ACL), nor am I able to be satisfied from the photographs relied upon by the applicant that the outdoor planter boxes and the outdoor seats supplied by the respondent are not free from defects (cf section 54(2)(c) of the ACL). As a matter of general principle, where this Tribunal exercises its general jurisdiction, there is usually a legal burden upon the party seeking relief to prove its case. This burden is not removed merely because the rules of evidence do not apply (see Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266 at [49]). In this case, I am not satisfied that the applicant has discharged that burden. Accordingly, I hereby order that the application be dismissed. No order is made as to costs. Consideration 1. We note that the appellant represented herself and that English is not her first language. Nevertheless, she presented as an articulate and intelligent party who was more than capable of presenting her arguments to the Appeal Panel, as was the case before the Tribunal. 2. We will summarise below what we see as the relevant and proper grounds of appeal. However, it is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at p 443. By way of example, we will not be commenting on the appellant's gratuitous comments on the respondent's character. 3. We see the following grounds of appeal as being raised by the appellant: 1. the appellant was denied procedural fairness; 2. the Decision was not fair and equitable; 3. the Decision was against the weight of the evidence; 4. there is significant new evidence that has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with, warranting the appeal being allowed. 1. As we have observed earlier in these reasons, each of the grounds other than the denial of procedural fairness require a grant of leave. 2. We shall consider each ground in turn. The appellant was denied procedural fairness 1. We noted above that the appellant did not claim in her Notice of Appeal, and confirmed at the hearing, that she was raising a question of law in her appeal. 2. However, in Prendergast the Appeal Panel stated at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 1. In our view, there is sufficient material before us for us to form the view that the appellant is raising the procedural fairness of the Tribunal hearing. This raises a question of law: Prendergast at [13(4)]. 2. There are two aspects to this ground of appeal. 3. The first aspect relates to the respondent's son representing the respondent at the Tribunal hearing. 4. At the Tribunal hearing, the transcript records the appellant as stating that she would be "significantly disadvantaged", and "fighting two Australian[s]" with "proper English and proper whatever". A similar submission was made orally at the appeal hearing. 5. We see no error by the Tribunal. Any allegation of disadvantage was not substantiated by any persuasive reasoning or evidence. In addition, as we have the benefit of the transcript, we are able to inform ourselves of how the Tribunal hearing was conducted. In our view, the Member's conduct of the hearing was the acme of what a hearing should be in Consumer and Commercial Division of the Tribunal where litigants are overwhelmingly not represented. 6. The second aspect related to the appellant not relying on her statement at the Tribunal hearing. She admitted at the appeal hearing that this was her error or mistake, and that she did not understand the implications of not being able to rely on her evidence. That said, the appellant was sworn at the Tribunal hearing and permitted to give oral evidence. Accordingly, we see no disadvantage to the appellant. 7. An appeal ground claiming a denial of procedural fairness raises a question of law. As noted above, leave to appeal is not required. 8. However, we discern no error by the Tribunal in relation to this question of law. In relation to this ground of appeal the appeal is dismissed. 9. All the other grounds of appeal require a grant of leave. The Decision was not fair and equitable 1. This ground of appeal is agitated in a number of ways. 2. First, the appellant submits that the Tribunal failed to consider the consumer guarantees set out in the ACL. 3. This ground of appeal is misconceived as it is completely without substance. The Tribunal determined that that the appellant's application raised a consumer claim under the ACL, set out relevant provisions of the ACL, and found that there had been no failure to comply with the statutory warranties in s 54. 4. Secondly, the appellant submitted that there was an inconsistency in the between the Tribunal's decision not to grant any relief under the ACL and the Tribunal's finding that: nor am I able to be satisfied from the photographs relied upon by the [appellant] that the outdoor planter boxes and the outdoor seats supplied by the respondent are not free from defects. (Emphasis added) 1. We agree that this finding is unfortunately worded. But when one observes that elsewhere in the Decision the Tribunal stated that: 1. it would give no weight to the appellant's evidence of what other carpentry experts had told her, 2. it would give no weight to the appellant's own evidence that the planter boxes and outdoor seats deteriorated very quickly when compared to other outdoor furniture she had; 3. and ultimately found that that the appellant had not discharged the burden of proving her case, we consider it clear that Tribunal did not find, contrary to the submissions of the appellant, that the planter boxes and outdoor seats were defective. 1. The third aspect to this ground of appeal relates to "baiting". 2. In her written submissions, the appellant states that she mentioned baiting at the Tribunal hearing at lines 1212 to 1214 of the Transcript. That portion of the transcript records the appellant as saying: Okay. First I'm going to talk about baiting advertising. He just said that I could pay a better quality; if I paid more, I could get better quality. I didn't know. I am not supposed to be expert in wood. All I knew is I wanted outdoor furniture. 1. The appellant then submits that the respondent: said he chooses affordable for the customers. In other words, baiting, (p33, [lines] 1155), 1156, 1157)! Presumptuous and overbearing, he assumed that I wouldn't pay extra for quality and., durability. I was not warned of the different types of words. That was an Attempts to limits which is unlawful. (bolding as in original) 1. Based on this evidence and the submission, we discern no error by the Tribunal. It follows we do not grant leave to appeal in respect of this ground. The Decision was against the weight of the evidence 1. The principal basis of this ground of appeal was that the Tribunal did not accept that the photographic evidence before it established a breach of a statutory warranty. 2. The Tribunal specifically found that the photographs did not establish that the planter boxes and the outdoor seats were not acceptable in appearance and finish and not free from defects. 3. There was a lengthy discussion about the use of photographs by the Appeal Panel in X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181. The Appeal Panel noted at [61] that in Blacktown City Council v Hocking [2008] NSWCA 144; (2008) Aust Torts Reports ¶81-956 Tobias JA, with whom Giles JA agreed had stated at [167] that: The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: R v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said: Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance. 1. And, at [64], the Appeal Panel noted that in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Beazley P, with whom Meagher and Leeming JJA agreed, said at [96]: In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]: "The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved. 1. Given those observations, and having considered the photographs ourselves, we discern no error by the Tribunal of its consideration of the photographs. 2. It follows we do not grant leave to appeal in respect of this ground. Significant new evidence is now available 1. The final basis for a grant of leave is that there is now new evidence available that was not reasonably available at the time of the hearing. The evidence sought to be relied is quotation AQN-00200.2 2. The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 3. We see no reason why the appellant could not have obtained or prepared that evidence prior to the Tribunal hearing on 6 September 2023. 4. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply. 1. This is not a ground of appeal in respect of which we would grant leave to appeal. 2. In any event, in Khan v Kang [2014] NSWCATAP 48 at [50], the Appeal Panel stated: A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. 1. However, the Appeal Panel at [50] continued: For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. 1. On any view, the quotation does not state that the work of the respondent was deficient in any way. Further, no qualifications of the author of the quotation are stated. 2. In our view, even, if permitted to be relied on in the appeal, the quotation would not have made any difference to the outcome of the appeal, as the quotation does not record the qualifications or experience of the author. Conclusion 1. For the above reasons, we see no error on a question of law. 2. As to any error for which leave is required, we would not grant that leave, as we do not consider that any ground advanced warrants a grant of leave. Leave is only usually granted where these matters involve an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its factfinding process in such an unorthodox manner that it is likely to have produced an unfair result. We are not satisfied that any of these factors are established. 3. As the Appeal Panel recently stated in Sedghi v Liew [2024] NSWCATAP 6 : 21. It is important to note that an appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again or have a "second chance": Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 22. Likewise, 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". Further, it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted. 1. To those comments could be added the observations of the Appeal Panel in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42 (Kora) at [111]: In short, there is a difference between having "a good case" and having the evidence to prove that one has "a good case". 1. The appellant did not have the evidence before the Tribunal to prove she had a "good case". We reject entirely her challenge to "the foundational assumption that the onus of proof in NCAT lies solely with [the appellant]. 2. As the Appeal Panel observed in Kora at [107], the Tribunal or its predecessors have remarked on a number of occasions (see Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685; McGinn v Barilla [2018] NSWCATAP 85) that: 1. a court or tribunal is informed and persuaded only by the presentation of evidence; 2. evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged; 3. evidence may be photographic, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent; 4. the uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered. 1. In any legal dispute, the party seeking relief (usually called the plaintiff or the applicant) has the burden of proving their allegations, and that they are entitled to the relief they seek. The other party (usually called the defendant or respondent) has no burden at all. As we observed during the hearing, the respondent was under no burden to disprove the appellant's claims. The burden of proof requires the appellant to produce probative evidence to establish the truth of facts needed to satisfy all the required legal elements of her claim. 2. This burden of proof on an applicant dates back to Roman times. [1] The appellant's submission that the burden does not lie solely with an applicant lacks any merit or substance. 3. For the reasons given in the Decision, this the appellant failed prove her case before the Tribunal. Quite properly, her application was dismissed by the Tribunal, and we see no error by the Tribunal in doing so. Costs 1. Both parties represented themselves at the appeal hearing. We make no order as to costs. Orders 1. The Appeal Panel orders: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. ********** Endnote 1. The Latin maxims onus probandi incumbit ei qui dicit, non ei qui negat and semper necessitas probandi incumbit ei qui agit, both attributed to Julius Paulus, are to similar effect. The moving party (or the party who speaks) bears the burden (onus probandi) of proving the charge or complaint. The accused party does not have to disprove the charge or complaint. Paulus was a Roman jurist whose writings were incorporated into to the Codex Justinianus, (Digest of Justinian) of Byzantine Emperor Justinian I. The Codex is one part of the Corpis Juris Civilis, being the codification of Roman law ordered by Justinian early in the 6th century AD. 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 January 2024