Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20
Hearing dates: 5 February 2024
Date of orders: 16 February 2024
Decision date: 16 February 2024
Jurisdiction: Appeal Panel
Before: G Blake AM SC, Senior Member
P Durack SC, Senior Member
Decision: 1. Leave to appeal is refused.
2. The appeal is otherwise dismissed.
Catchwords: APPEALS — Appeal on question of law – Scope of question of law
APPEALS — Leave to appeal — Principles governing – leave to appeal refused
APPEALS — Procedural fairness — Whether the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing is required
Legislation Cited: Australian Consumer Law (NSW), ss 2, 3, 60, 267
Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, Sch 4, cl 12
Civil and Administrative Tribunal Rules 2014 (NSW), r 25
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
Fair Trading Act 1987 (NSW), s 28, Pt 6A
Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Collins v Urban [2014] NSWCATAP 17
FleetServ Pty Ltd v Maiden Co Pty Ltd [2023] NSWCATAP 268
Italiano v Carbone & Ors [2005] NSWCA 177
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733
Morrison v Neighbourhood Association DP No 285032 [2024] NSWCATAP 18
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15
Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284
Texts Cited: None cited
Category: Principal judgment
Parties: Steelbond Australia Pty Ltd (Appellant)
Rachael Wein and Chris Wein (Respondents)
Representation: Solicitors:
S Mulipola (Appellant)
Respondents (Self represented)
File Number(s): 2023/00263153
Publication restriction: Nil
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Date of Decision: 19 July 2023
Before: J Searson, General Member
File Number(s): GEN 23/09612
REASONS FOR DECISION
Overview
1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 19 July 2023 and subsequently corrected on 31 July 2023 and 15 August 2023, in proceedings under the Fair Trading Act 1987 (NSW) (FT Act) concerning a dispute between the respondents, Rachael Wein (Ms Wein) and Chris Wein (Mr Wein) who are the owners of a property at Speers Point in New South Wales (the property), and the appellant, Steelbond Australia Pty Ltd which carries on business under the name Town & Country Australia (Steelbond), which is the builder that agreed to carry out building work at the property. In the decision, the Tribunal made a money order in favour of Mr and Mrs Wein.
2. The substantial issues in the appeal have been whether the Tribunal failed to afford procedural fairness to Steelbond by commencing the hearing in its absence and made errors in finding that Steelbond breached s 60 of the Australian Consumer Law (ACL) and caused loss Mr and Mrs Wein.
3. As we have found that there was no failure to afford procedural fairness to Steelbond or any errors made by the Tribunal, we have decided to refuse leave to appeal and to otherwise dismiss the appeal.
The factual background
1. On 16 February 2022, Mr and Mrs Wein and Steelbond entered into a contract for the restoration of the roof of the building on the property for the price of $3,900.00 including GST (the building contract).
2. Disputes arose between the parties as to alleged defective building works.
The history of the proceedings between the parties in the Consumer and Commercial Division of the Tribunal
1. On 12 September 2022, Mr Wein as the applicant commenced proceedings HB 22/40906 in the Consumer and Commercial Division of the Tribunal against Town & Country Australia as the respondent by filing an application in which he claimed a money order for $10,000.00 (the Wein application).
2. On 4 October 2022, the Tribunal made procedural orders for the hearing including orders joining Ms Wein as an applicant, amending the name of the respondent to Steelbond Australia Pty Ltd trading as Town & Country Australia, and transferring proceedings HB 22/40906 to the General List which were allocated with the number GEN 22/40906.
3. On 7 December 2022, the Tribunal made an ex-parte money order for $8,040.00 in favour of Mr and Mrs Wein (the 7 December 2022 order).
4. On 17 January 2023, Steelbond as the applicant commenced proceedings GEN 23/02490 in the Consumer and Commercial Division of the Tribunal against Mr and Mrs Wein as the respondents by filing an application in which it claimed an order setting aside the 7 December 2022 order.
5. On 28 February 2023, the Tribunal allocated proceedings GEN 22/40906 with the number GEN 23/09612.
6. On 5 May 2023, the Tribunal made an order in proceedings GEN 23/02490 setting aside the 7 December 2022 order.
7. On 18 July 2023 commencing at 1.15pm, the hearing of proceedings GEN 23/09612 took place.
8. On 19 July 2023, the Tribunal relevantly made a money order for $1,680.00 in favour of Mr and Mrs Wein (the 19 July 2023 order), and published reasons for its decision (the 19 July 2023 decision).
9. On 31 July 2023, the Tribunal made corrections to the 19 July 2023 decision including substituting $3,180.00 for $1,680.00 as the amount of compensation payable for breach of s 60 of the ACL (the corrected 19 July 2023 decision).
10. On 15 August 2023, the Tribunal corrected the 19 July 2023 order by substituting $3,180.00 for $1,680.00 as the amount of the money order (the corrected 19 July 2023 order).
The corrected 19 July 2023 decision
1. In the corrected 19 July 2023 decision, the Tribunal:
1. set out the orders sought by Mr and Mrs Wein and the opposition of Steelbond ([1]-[2]);
2. set out the nature of the dispute between the parties ([3]-[4]);
3. set out of the evidence of the parties ([5]-[10]) which:
1. for Mr and Mrs Wein comprised:
1. the report of Skyline Roofing Solutions dated 23 May 2023 (the Skyline report);
2. the undated report of Allen Goodwin of Newcastle Roofing Supplies;
3. their oral evidence;
1. for Steelbond comprised:
1. the undated report of Ronald Lawrence (the Lawrence report);
2. the affidavit of William Joseph Culleton (Mr Culleton) sworn on 16 June 2023 (the 16 June 2023 Culleton affidavit);
3. the affidavit of John Janos Suba (Mr Suba) sworn on 16 June 2023 (the 16 June 2023 Suba affidavit);
4. the oral evidence of Mr Culleton and Mr Suba;
1. found that the Tribunal had jurisdiction to hear and determine the proceedings under Pt 6A of the FT Act ([11]-[13]);
2. set out details of the building contract including the scope of works, the payments made, the completion of the works and the dispute between the parties ([14]-[21);
3. set out some details of the history of the Tribunal proceedings ([22]-[25);
4. set out the applicable statutory provisions being s 28 of the FT Act and ss 2, 3, 60 and 267(4) of the ACL ([26]-[31);
5. set out the matters which Mr and Mrs Wein needed to prove ([32]-[34);
6. set out the following three questions which the Tribunal was required to consider ([35):
"(1) Has there been a breach of the guarantee under s 60 of the ACL or the contract between the parties?
(2) If so, what is the appropriate remedy?
(3) What further or other orders are required to do justice in the matter?"
1. on the question of whether there had been a breach of s 60 of the ACL or the building contract, after to the respective contentions of the parties, quoting Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733 at [409]-[410], [422]-[423], [428]-[429] in which Garling J referred to ss 5B, 5C and 5D of the Civil Liability Act 2002 (NSW) (CL Act) as being applicable to the question of whether there a breach of s 60 of the ACL and referring to subsequent authorities consistent with this approach ([36]-[45), set out the following evidence and made the following finding ([46]-[50):
"46 The applicant alleges that the respondent had breached the provisions of the ACL with respect to the provision of services with due care and skill. In this regard the applicants rely upon the Skyline report which states at it's conclusion that:
"Throughout the re-pointing works that were carried out in multiple locations separation, small holes and gaps where the potential for water ingress is present were found. Also 1 broken tile glued together with sealant was also found on rear elevation. There items are suggested for rectification works to prevent possible ingress by employed contractor"
"Evidence of incorrect angle water ingress and evidence of water flow on top of roof sarking was detected on multiple elevations. The area where major water ingress occurred within kitchen ceiling as shown in C1 and 2 appears to have been caused by a combination of factors. This includes incorrect angle of pressure washer gun during cleaning process and also underlying roof issues not visible to the contractor cleaning roof system".
47 The report recommends that the repointing issues and the broken tile glued together with adhesive and painted over are issues for rectification by the respondent.
48 The respondent relied upon the Lawrence report. It sated (sic) that:
"An experienced roof washer should NOT be responsible for poor roof design improper flashings or poor workmanship of the roof flashing when build many years ago".
49 The Tribunal prefers the evidence of the applicant in regards to the cause of the damage. This is because the applicant's report is far more detailed than the respondent's report, being approximately 11 pages in length and incorporating photographs into the report.
50 The Tribunal finds based on the evidence of the applicant and taking into account the principles in Moore above that the respondent has breached the consumer guarantee contained in s 60 of the ACL, that is the provision of services with due care and skill."
1. rejected Steelbond's contention that there was an estoppel based on a settlement agreement between the parties in respect of the dispute ([52]-[59);
2. on the question of the appropriate remedy [51], after referring to the applicable legal principle for the measure of damages. a statutory provision and a relevant authority ([63]-[64], made the following findings as to causation and damages ([60]-[61], [65]-[67]):
"60 The Tribunal is satisfied that the loss suffered by the applicant is not too remote from the breach by the respondent applying the principles in Hadley v Baxendale (1854) 9 Ex 341.
61 Further the Tribunal is satisfied that the applicant took appropriate steps to mitigate any loss. It is noted that the respondent did not raise any issues in relation to the mitigation of any loss and that the respondent bares (sic) the onus of proof in this regard."
"65 The Tribunal finds that the applicants have suffered loss because of the respondent's conduct that contravened section 60 of the ACL which is found in Chapter 2 of the ACL and is therefore the applicants are entitled to recover the amount of such loss pursuant to section 236 of the ACL. Section 78N(a) of the FTA allows the Tribunal to make a money order in the applicant's favour.
66 The applicant's (sic) have provided sufficient evidence to establish that they had paid the respondent a total of $1400 for the works. The Tribunal is satisfied that they should be refunded this amount.
67 In addition, the Tribunal is satisfied of the amount of $280 required to complete painting repair works at their premises as per the quote of Daniel Clark Painting and Maintenance."
1. rejected the other claims of Mr and Mrs Wein ([68]-[69]);
2. concluded that it would order Steelbond to pay Mr and Mrs Wein the sum of $1680.00 within 14 days and that it was satisfied that this order was fair and equitable to the parties ([70]-[71]).
The history of the appeal
1. On 16 August 2023, Steelbond as the appellant commenced proceedings 2023/00263153 against Mr and Mrs Wein as the respondents by filing the following documents:
1. a notice of appeal containing the following details:
1. in section "5 GROUNDS FOR APPEAL":
1. under the subheading "A ORDERS CHALLENGED ON APPEAL", the corrected 19 July 2023 order;
2. the following grounds of appeal under the subheading "B GROUNDS OF APPEAL":
"The grounds of appeal are as follows:
1. The Tribunal committed an error of law in finding that the appellant had breached the consumer guarantee in $60 of the Australian Consumer Law (s 28 of the Fair Trading Act 1987 (NSW)) by failing to provide services with due care and skill.
a) The Tribunal did not consider the issue of causation - whether the appellant caused the loss or damage, or whether it was due to structural wear and tear and inherent defects.
b) The Tribunal did not consider the issue of enrichment, whether the respondents sought to place themselves in a better position than they were in before the contract.
c) The Tribunal failed to consider relevant evidence, including the Statement of Mr Noel Clark dated 1 May 2023 and oral evidence of Mr Culleton and Mr Subs.
d) The Tribunal failed to consider contributory negligence by Mr Chris Wein, asserted in the Statements of Mr Culleton and Mr Clark.
2. The Tribunal made significant errors of fact in its orders and reasons, which make the tribunal's findings illogical, irrational and not based upon logical inferences, findings or grounds:
a) There were errors of fact in the Tribunal's calculation of the orders, corrected twice under the slip rule.
b) There are significant, material errors of fact in the Tribunal's findings, which indicate the Tribunal had not made correct conclusions. For example, the Tribunal did not appreciate there were two roofs, a main and skillion roof."
1. under the subheading "C ORDERS SOUGHT":
"1. Set aside the orders of the Tribunal dated 18 July 2023, as amended on 31 July and 14 August 2023.
2. Order that the application by Chris and Rachael Wein made 26 May 2023 for an order for payment in the sum of $12,068 be dismissed.
3. Costs."
1. in section "6 LEAVE TO APPEAL" under the subheading "B APPLICATION FOR LEAVE TO APPEAL FROM A CONSUMER AND COMMERCIAL DIVISION DECISION":
1. under the subheading "i Decision not fair and equitable":
"The appellants also seek leave to appeal on the merits.
The appellant has suffered a substantial miscarriage of justice and leave to appeal on the merits should be granted because:
- the decision was not fair and equitable: as shown the Tribunal demonstrated significant errors of law and fact in its decision, including in the original final orders. The damages calculation errors alone warrant review by the Appeal Panel. The factual errors show the decision was prepared hastily, and are illogical, irrational or not based upon logical inferences or grounds.
- the decision was against the weight of evidence: the Tribunal did not give adequate reasons for preferring Mr & Mrs Wein's expert report or rejecting the oral evidence of Mr Culleton and Mr Suba as to causation and damages.
- significant new evidence is now available that was not reasonably available at the time of hearing: the Respondents prevented a second independent expert from attending the building site to undertake an inspection and produce a second report on behalf of the appellants, Steelbond Australia Pty Ltd."
1. in answer to the questions "What evidence should the Tribunal have given more weight to? Why?" under the subheading "iii. Decision of the Tribunal against the weight of evidence":
"The Tribunal should have given more weight to:
- the oral evidence and affidavit of Mr William Joseph Culleton;
- the oral evidence and affidavit of Mr John Janos Suba.
The Appeal Panel should have the benefit of oral evidence from Mr Noel Clark – contractor and painter and witness to events."
1. an application for a stay of the corrected 19 July 2023 order (the stay application).
1. On 31 August 2023, Mr and Mrs Wein filed their reply to appeal.
2. On 1 September 2023, the Appeal Panel constituted by a Principal Member granted Steelbond leave to be legally represented, dismissed the stay application, and made procedural directions for the hearing of the appeal.
3. On 28 September 2023, Steelbond filed a bundle of documents (the Steelbond appeal documents) comprising:
1. its written submissions dated 25 September 2023 (the Steelbond appeal submissions);
2. the Wein application;
3. the 16 June 2023 Culleton affidavit;
4. the 16 June 2023 Suba affidavit;
5. the statement of Noel Clark (Mr Clark) dated 1 May 2023;
6. the Lawrence report;
7. the report of Michael Gemmell dated 25 September 2023 (the Gemmell report);
8. the statement of Mr Culleton dated 22 September 2023 (the 22 September 2023 Culleton statement);
9. a transcript of part of the hearing on 18 July 2023 and the sound recording of the hearing.
1. On 18 October 2023, Mr and Mrs Wein filed a bundle of documents (the Wein appeal documents).
The hearing of the appeal
1. At the commencement of the hearing, the solicitor for Steelbond indicated that it:
1. relied on the following amended grounds of appeal set out in the Steelbond appeal submissions:
"17. The amended grounds of appeal and questions of law raised (from the appellants Notice of Appeal dated) are as follows:
a. The Tribunal committed an error of law in finding breach of the consumer guarantee in s 60 of the ACL (failure to provide services with due skill and care);
b. The Tribunal erred in not considering the issue of causation and whether the damage was structural or inherent or caused by the Appellant;
c. The Tribunal erred in not considering the issue of enrichment and in assessing the credit and credibility of the Respondents and the Respondent's expert;
d. The Tribunal erred in not considering contributory negligence by Mr Wein;
e. The Tribunal made significant errors of fact in its orders, including:
i. Two errors calculating damages in the final orders, requiring correction by the Tribunal; and
ii. Significant errors of fact in findings of fact, including about the roof in issue.
f. Did the Tribunal deny the Appellant procedural fairness in taking evidence from the respondent, Mrs Rachael Wein, in the absence of the Appellant, Steelbond during the hearing on 18 July 2023 at 1:15 pm, for approximately 7 minutes and 50 seconds. The Tribunal member commented on the appellant's arrival approximately 8 minutes into the hearing: "we're half way through the evidence.""
1. sought the following amended orders set out in the Steelbond appeal submissions:
"a) Leave to appeal is granted.
b) Set aside the orders of the Tribunal dated 18 July 2023 (amended 15 August 2023) and in their place order that:
a. the application made by the respondents on 9 September 2022 (HB/GEN 22/40906) amended 26 May 2023 for payment of $12,068.00 is dismissed.
b. the respondents are to pay to the appellant an amount of $720.
c) There be no order as to costs."
1. Steelbond relied on the Steelbond appeal documents.
2. Mr and Mrs Wein relied on the Wein appeal documents.
3. The solicitor for Steelbond made oral submissions. During the course of these submissions the solicitor for Steelbond:
1. contended that amended ground of appeal 17f raises a question of law;
2. indicated that it sought leave to appeal in respect of amended grounds of appeal 17a, 17b, 17d and 17f;
3. indicated that it did not press amended grounds of appeal 17c and 17e.
1. We did not call upon Mrs Wein to make any oral submissions.
The scope and nature of internal appeals
1. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act.
3. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch of the NCAT Act 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." (emphasis in original)
1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where 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 member could reach.
1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act 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].
2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
3. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal:
"[84] The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) 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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
The issues for determination in the appeal
1. We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. In the Steelbond appeal submissions, Steelbond submitted that Mr and Mrs Wein did not establish that Steelbond caused the harm suffered. It is not clear whether Steelbond's submission was that the Tribunal failed to consider the issue of causation or made a finding on causation that was against the weight of evidence.
3. The following issues arise for determination in this appeal or may arise for determination depending on the outcome of anterior issues:
1. issue 1: whether amended grounds of appeal 17f and 17b in so far as it contains the contention that the Tribunal failed to consider the issue of causation raises a question of law, and if so whether the Tribunal made an error of law;
2. issue 2: whether Steelbond should be granted leave to appeal against the corrected 19 July 2023 order on any one or more of amended grounds of appeal 17a, 17b in so far as it contains the contention that the Tribunal made a finding on causation that was against the weight of evidence, 17d and 17f, and if so whether the appeal should be allowed and that order should be set aside.
1. Before turning to these issues, we have made some general comments about the appeal.
Some general comments about the appeal
1. It is an established principle that an appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (Ryan) at [10].
2. During the course of his oral submissions, we drew this principle to the attention of the solicitor for Steelbond.
3. However, the oral submissions made on behalf of Steelbond largely consisted of general contentions as to why Steelbond should have been successful rather than the identification of errors made by the Tribunal. In so doing Steelbond's solicitor transgressed the principle in Ryan at [10]. To establish an error for which leave to appeal should be granted, we would have expected identification of each finding in the corrected 19 July 2023 decision that was challenged, an articulation of the legal principles that were relevant to the finding and/or an analysis of the evidence that was relevant to the finding, the reasons why the finding was erroneous, and how any such erroneous finding was material to the making of the corrected 19 July 2023 order. In these circumstances, we have received only very limited assistance from the oral submissions made on behalf of Steelbond.
4. Further, it is an established principle that where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 (Suttor) at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35. This principle has been regularly applied to appeals in the Tribunal: see, for a recent example, Morrison v Neighbourhood Association DP No 285032 [2024] NSWCATAP 18 at [26].
Issue 1: whether amended grounds of appeal 17f and 17b in so far as it contains the contention that the Tribunal failed to consider the issue of causation raises a question of law, and if so whether the Tribunal made an error of law
Amended ground of appeal 17f
1. We accept that the question of whether the Tribunal has failed to afford procedural fairness to a party by conducting the hearing in accordance with the proper procedure raises a question of law: Italiano v Carbone & Ors [2005] NSWCA 177 (Italiano) at [85]-[87] (Basten JA); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific) at [9] (Basten JA with Beazley P at [1] agreeing).
2. A denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The second is that the materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. Establishing that threshold of materiality is not onerous: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 (Nathanson) at [45]-[47] (Gageler J). These principles have been recently applied by the Appeal Panel: FleetServ Pty Ltd v Maiden Co Pty Ltd [2023] NSWCATAP 268 (FleetServ) at [23].
3. The solicitor for Steelbond conceded that a failure afford to procedural fairness must be material to the impugned decision. Having regard to Nathanson at [45]-[47] and FleetServ at [23], we are satisfied that this concession was correctly made. Thus, the onus upon Steelbond was not a high one but it needed to establish that the decision could have been different if the alleged procedural defect had not occurred.
4. The solicitor for Steelbond contended that Steelbond's representative Mr Culleton arrived late, about 10 minutes after 1.15 pm on 18 July 2023. He submitted that the Tribunal should have adjourned the hearing or refrained from taking evidence and submissions until Mr Culleton arrived, to give Steelbond a reasonable opportunity to present their case. By failing to do so the Tribunal denied Steelbond procedural fairness.
5. The solicitor for Steelbond drew attention to the transcript of the hearing on 18 July 2023 which records that the following evidence was given before the arrival of Mr Culleton:
"TRIBUNAL: So, Ms Wein, do you solemnly and sincerely declare and affirm that the evidence that you shall give will be the truth, the whole truth and nothing but the truth?
MS WEIN: I Do
MS WEIN: So we are seeking a money order...
TRIBUNAL: And why do you say we should make that order?
MS WEIN: So, we hired Steelbond Australia and they without telling us hired a subcontractor to perform the work, the subcontractor then carried out the work our roof in the rain, which was priming initially, that primer in the rain caused to run off into brand new installed gutters, he then oversprayed paint into the gutters, cracked a rooftile, causing the initial waterflooding into the kitchen, there was a lot of back and forth in between. But when we agreed for him to come back to complete works, he then used a high pressure hose cleaner on the skillion part of the roof that was yet to be painted. And in carrying out those works, which we believe was carried out with no due care or skill, the pressure washer was then pointed between the junction of the two roofs causing extreme water ingress into the kitchen.
MS WEIN: As part of that evidence that we had submitted as well we did get a non-biased roof specialist to come and do a report on the condition of the roof and he also reported on the workmanship of the workmanship of the roof that had been completed by the subcontractor and he believed that the paint was the wrong specification and would fail within 2 years. Along with there was holes in the ridge capping and the silicon...
At 7 minutes, 50 seconds into the sound recording:
[Mr Culleton, arrives at hearing room]
MR CULLETON: Apologies, we thought it was half past one.
TRIBUNAL: Well, we've already started taking evidence. Come and have a seat. I'm just wondering now that the respondent here, have you had an opportunity before to participate in conciliate?
TRIBUNAL: Well, we're sort of about halfway through the hearing, and I've taken some evidence from the applicant. I was just looking at the report and what orders were being sought. And we've just got some evidence about a tile that wasn't replaced and glued together and silicone over that's sort of where we were up to. Is there anything else that you wanted to add?"
1. The solicitor for Steelbond did not contend that during the hearing on 18 July 2023 Mr Culleton made an application for the adjournment of the hearing or otherwise indicated to the Tribunal that Steelbond was prejudiced by reason of Mrs Wein having given oral evidence.
2. When we raised with the solicitor for Steelbond whether the obligation to afford procedural fairness to parties required the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing given, he relied on Kioa v West (1985) 159 CLR 550 (Kioa) at 585; [1985] HCA 81 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at 367; [2013] HCA 18 which were set out in the Steelbond appeal submissions.
3. In Kioa, the High Court considered an appeal against a deportation order made against the appellants who were Tongan citizens. The High Court by majority (Mason, Wilson, Brennan and Deane JJ in separate judgments, with Gibbs CJ dissenting), held that there was neither any relevant statutory framework supporting, nor was there any direct authority for, a general proposition that the requirements of natural justice or procedural fairness need not be observed in relation to making a deportation order. In the circumstances the Tongan citizens were entitled, in keeping with ordinary rules of procedural fairness, to be heard before the making of the deportation orders against them so that they might deal with matters prejudicial to them that had been put to the Minister's delegate. Mason J at 584-585 made the following observations:
"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ." (citations omitted)
1. In Li, the High Court considered an appeal against the refusal of the Migration Review Tribunal to adjourn a hearing pending finalisation of new skills assessment. The High Court (French CJ; Hayne, Kiefel and Bell JJ in a joint judgment; and Gageler J) held that the Tribunal's decision to refuse an adjournment was unreasonable and had resulted in jurisdictional error. French CJ at [18] relevantly said:
"[18] … The common law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment in such cases and informs its legal consequences where a person is said to have been deprived by a refusal of a reasonable opportunity for a hearing."
1. Hayne, Kiefel and Bell JJ at [48] relevantly said:
"[48] … A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. …" (citation omitted)
1. In Italiano, the New South Wales Court of Appeal considered an appeal which arose out of a decision of the Consumer Trader and Tenancy Tribunal in which, without ever making an order joining Mr Italiano in the proceedings, awarded the cross claimant, Mr Carbone, an award of $74,500 against Mr Italiano personally. The appeal was allowed on the basis that the decision of the Tribunal was ultra vires. An issue in the appeal was whether Mr Italiano was accorded procedural fairness. Although not determinative, Basten JA and Einstein J in separate judgments considered whether an adjournment should have been granted to Mr Italiano. Basten JA at [85]-[88] said:
"[85] A claim based on procedural unfairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal itself had an obligation to consider offering an adjournment.
[86] In the present case, there was a hearing at which the Claimant had the opportunity to seek an adjournment so that he could better prepare a defence to a case of which he had inadequate notice. His failure to make an application in that regard, absent some satisfactory explanation, itself grounded on procedural unfairness, is fatal to this aspect of his claim. He did not give evidence before the Master that his failure to seek an adjournment was because at no stage prior to the completion of the hearing, did he understand that any claim was made against him personally. Had he given such evidence, it could well have been subjected to serious challenge. In any event, it was a matter of fact for him to establish before the Master and that he did not seek to do.
[87] Absent such evidence, he cannot succeed in this Court because to do so he must ask this Court, in effect, to consider and determine in his favour an application for an adjournment which he did not make before the Tribunal. Such a request would involve a rehearing of an aspect of the Tribunal proceeding. No such factual inquiry can be undertaken by way of judicial review or on an appeal on a question of law. It is for an analogous reason that, where a breach of procedural fairness is established, the Court will not inquire into the consequences in the particular circumstance, unless "it is confident that the breach could not have affected the outcome": Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] (McHugh J).
[88] An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:
"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.": at [37].
1. The observations of Einstein J at [174]-[184] were substantially similar to those of Basten JA at [85]-[88].
2. We accept that the Tribunal is required to afford procedural fairness to the parties to proceedings pursuant to s 38(2) and (5)(c) of the NCAT Act which provide:
38 Procedure of Tribunal generally
…
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
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(5) The Tribunal is to take such measures as are reasonably practicable—
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(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
…
1. However, we do not accept that s 38(2) and (5)(c) of the NCAT Act on their proper construction require the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing. Nothing in Kioa, Li or Italiano suggests the obligation to afford procedural fairness contains any such requirement. It follows that the Tribunal did not make an error of law in commencing the hearing and accordingly the appeal on this ground is dismissed.
2. If, contrary to our finding, the Tribunal failed to afford procedural fairness to Steelbond by not adjourning the hearing or delaying the commencement of the hearing until Mr Culleton arrived, then the question arises as to whether this failure was material to the corrected 19 July 2023 decision.
3. The solicitor for Steelbond contended that the failure by the Tribunal to afford to procedural fairness was material to the corrected 19 July 2023 decision at [49] and [50] because "the evidence of the applicant" should be understood as including the oral evidence of Mrs Wein.
4. We do not agree. If we had been satisfied that there was a failure by the Tribunal to afford to procedural fairness to Steelbond by not adjourning the hearing or delaying the commencement of the hearing, we would not have been satisfied that the oral evidence of Mrs Wein was material to the findings in the corrected 19 July 2023 decision at [49] and [50]. As revealed by a fair reading of the corrected 19 July 2023 decision at [46] to [49], these findings were based on the Skyline report which the Tribunal preferred to the Lawrence report. Accordingly, we are not satisfied that in such circumstances the decision could have been different.
Amended ground of appeal 17b in so far as it contains the contention that the Tribunal failed to consider the issue of causation
1. The term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked: Resource Pacific at [9] (Basten JA with Beazley P at [1] agreeing).
2. If there has been a constructive failure to exercise jurisdiction there will have been error of law which can be addressed on an appeal limited to a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [22] (Basten JA).
3. Having regard to Resource Pacific at [9] and Alexandria Landfill at [22], we accept that amended ground of appeal 17b in so far as it contains the contention that the Tribunal failed to consider the issue of causation raises a question of law.
4. We accept that the excerpt of the transcript of the hearing evidence contains oral evidence of Mr Culleton in which he gave evidence that there was an opening between the roof and skillion roof allowing water entry. Further, Mr Culleton in the 16 June 2023 Culleton affidavit raised the question of causation.
5. We are satisfied that on a fair reading of the corrected 19 July 2023 decision at [46] and [47] the Tribunal in accepting the Skyline report found that water ingress was caused by a combination of factors, including incorrect angle of pressure washer gun during the cleaning process and also underlying roof issues not visible to the contractor cleaning roof system. It also found that repointing work and work on a broken tile were matters for rectification by the appellant. Having made these findings, the Tribunal at [65] was satisfied that the breach of s 60 of the ACL by Steelbond caused loss to Mr and Mrs Wein. It follows that the Tribunal did not make an error of law in failing to consider the issue of causation and accordingly the appeal on this ground is dismissed.
Issue 2: whether Steelbond should be granted leave to appeal against the corrected 19 July 2023 order on any one or more of amended grounds of appeal 17a, 17b, 17d and 17f, and if so whether the appeal should be allowed and that order should be set aside
Introduction
1. It is convenient to consider amended ground of appeal 17f before considering amended grounds of appeal 17a, 17b in so far as it contains the contention that the Tribunal made a finding on causation that was against the weight of evidence and 17d in turn.
Amended grounds of appeal 17f
1. In view of our finding that that the Tribunal did not make an error of law in commencing the hearing, this ground of appeal does not arise for consideration.
Amended ground of appeal 17a
1. In the Steelbond appeal submissions, Steelbond submitted that the Tribunal's decision that it breached s 60 of the ACL was against the weight of evidence. Further, the Gemmell report and the 22 September 2023 Culleton statement was significant new evidence that was not reasonably available at the time of the hearing because Mr and Mrs Wein denied Steelbond an opportunity to obtain a second expert report when they denied entry to the property for an expert to carry out an inspection.
2. In view of the opinions expressed in the Skyline report recorded in the corrected 19 July 2023 decision at [46], we are not satisfied that the Tribunal's decision that it breached s 60 of the ACL was against the weight of evidence.
3. The solicitor for Steelbond did not point to any evidence where Mr and Mrs Wein had refused entry to the property to a second expert retained by Steelbond to carry out an inspection. In any event, as the Gemmell report is not based on an inspection of the building on the property, there is no reason why it could not have been obtained prior to the hearing on 18 July 2023. Further, there is no reason why the 22 September 2023 Culleton statement could not have been obtained prior to the hearing on 18 July 2023.
4. It follows that Steelbond has not established the condition in one or both of cl 12(1)(b) and (c) of Sch 4 of the NCAT Act and accordingly leave to appeal on this ground is refused.
Amended ground of appeal 17b in so far as it contains the contention that the Tribunal made a finding on causation that was against the weight of evidence
1. In the Steelbond appeal submissions, Steelbond relied on the evidence of Mrs Wein, Mr Culleton, Mr Suba and Mr Clark that prior to the job in April and May 2022 there it was raining, and there were storms and flooding at Lismore and heavy rain. It submitted that Mr and Mrs Wein would have suffered harm even if it had not been negligent and referred to s 5D(3) of the CL Act. As stated in the Gemmell report, the area would have flooded after torrential rain. To put it simply, Mr and Mrs Wein provided no evidence of the condition of the roof prior to 31 May 2022.
2. In The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 at [132]-[134], the Appeal Panel identified the following principles for causation under the common law:
132 First, causation is a question of fact to be answered by common sense and experience: March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at [17].
133 Secondly, as long as a cause of the loss is the breach about which complaint is made, the fact there are multiple causes for the loss will not prevent a claimant recovering damage.
134 In Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322 the Court said:
It was, of course sufficient for the plaintiffs to establish that the defendants' breaches were a cause of the loss notwithstanding that there may have been other concurrent causes. Hence, the defendants' argument must show that the plaintiffs' lack of care was the sole cause of the loss, to the exclusion of any causative influence exerted by the defendants' breaches. I take the correct principle to be that stated in Chitty on Contracts, General Principles, 23rd ed.; p. 670, par. 1448:
"If a breach of contract is one of two causes, both cooperating and both of equal efficacy in causing loss to the plaintiff, the party responsible for the breach is liable to the plaintiff for that loss."
This statement is supported by the authority of Devlin J., as he then was, in Heskell v Continental Express Ltd [1950] 1 All ER 1033 at 1046-1048, and the cases there cited. In particular, I refer to what was said by Lord Wright with whom Lord Atkin agreed, in Smith Hogg & Co Ltd v Black Sea and Baltic General Insurance Co. Ltd [1940] AC 997 at 1007. His Lordship's remarks, although delivered in a context different from that which obtains here, are of undoubted application. Lord Wright said:
"The sole question apart from express exception, must then be: 'Was that breach of contract "a" cause of damage."
1. Having regard to these common law principles, we are satisfied that the breach of s 60 of the ACL by Steelbond by reason of required rectification work and incorrect angle of pressure washer gun during the cleaning process was a cause of loss to Mr and Mrs Wein. If these common law principles are applicable to determine causation, then Steelbond has not established that the Tribunal's finding on causation was against the weight of evidence. It follows that leave to appeal on this ground is refused.
2. We accept that s 5D of the CL Act has modified the test of causation under the common law: Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 at [82] (Leeming JA).
3. The solicitor for Steelbond did not point to any evidence or submission where the application of s 5D of the CL Act had been raised.
4. We are not satisfied that the application of s 5D of the CL Act was raised at the hearing on 18 July 2023. If the application of this section had been raised, evidence could possibly have been given by Mr and Mrs Wein as to what they would have done if Steelbond had not breached s 60 of the ACL. In these circumstances, having regard to the principles in Suttor at 438, the application of s 5D of the CL Act on the question of causation cannot be raised on appeal.
Amended ground of appeal 17d
1. In the Steelbond appeal submissions, Steelbond submitted that that there was contributory negligence by Mr Wein which reduces the damages sought and payable.
2. However, the solicitor for Steelbond informed us that a defence of contributory negligence was not raised at the hearing. If this defence had been raised, evidence could possibly have been given by Mr Wein which could have prevented the point from succeeding. In these circumstances, having regard to the principles in Suttor at 438, this ground cannot be raised on appeal. It follows that leave to appeal on this ground is refused.
Orders
1. We make the following orders:
1. leave to appeal is refused;
2. the appeal is otherwise dismissed.
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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
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Decision last updated: 16 February 2024