Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Agrison Pty Ltd v Madsen [2014] NSWCATAP 95 Hearing dates: 24 September 2014 Decision date: 28 November 2014 Jurisdiction: Appeal Panel Before: Wright J, President G Meadows, Senior Member R Deutsch, Senior Member Decision: 1. Leave to appeal is refused. 2. The Appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - whether grounds raise a question of law - whether leave to appeal is required - Civil and Administrative Tribunal Act 2013 (NSW), s 80, cl 12 of Sch 4 - whether decision fair and equitable - whether decision against the weight of the evidence - discretion to grant leave not enlivened - leave application refused. APPEAL - error of law - whether Tribunal jurisdiction derived from Motor Traders Act 1974 - whether no evidence to support findings - whether failure to afford procedural fairness - appeal dismissed. Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Consumer Trader and Tenancy Tribunal Act 2001 Fair Trading Act 1987 Motor Traders Act 1974 Cases Cited: Collins v Urban [2014] NSWCATAP 17 NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Category: Principal judgment Parties: Agrison Pty Ltd (Appellant) Paul Madsen (Respondent) File Number(s): AP 14/46392 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-16 00:00:00 Before: A Anforth, General Member File Number(s): [2014] NSWCATCD 79 reasons for decision Background 1The respondent, Mr. Paul Madsen, purchased a second-hand Agrison brand tractor from the appellant, Agrison Pty Ltd (Agrison), on 3 April 2013. The tractor was purchased as part of a "package" which included a "complementary" slasher, a pair of spare slasher blades, a "clean and service" and payment for 4 years parts, warranty and freight. Mr Madsen complained about a number of items in the first few days after the equipment was delivered. On 5 May 2013 (although this finding at [24] of the reasons for decision of the Tribunal below may be a slip and the date should have been recorded as 5 June 2013) the respondent filed an application with the Consumer Trader and Tenancy Tribunal (CTTT), the predecessor to the Consumer and Commercial Division of this Tribunal. 2The parties in the CTTT were self-represented. On 16 May 2014, General Member Anforth, sitting as a Member of the Civil and Administrative Tribunal pursuant to cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the Act), made the following orders together with the accompanying reasons (the decision): 1. The respondent [Agrison] is to repay the applicant [Mr Madsen] the full purchase price, the sum of $14,699.00, by 31 May 2014. 2. The respondent is to collect the tractor from the applicant's property at a time convenient to both parties, arranged with no less than 48 hours advance notice. The respondent is to bear the cost of any expenses occurred [sic] in collecting the tractor. 3. Both parties are required to negotiate the time at which the respondent will collect the tractor and the applicant is to provide access to the respondent to collect the tractor at the arranged time. 3The former CTTT had, and this Tribunal has, power to make those orders pursuant to s 8 of the Consumer Claims Act 1998 (the CC Act) - see for example s 8(1)(h)(i) and (ii). It was raised as an issue in this appeal whether the Tribunal had jurisdiction under the Motor Dealers Act 1974 (the MD Act) and this will be dealt with later in these reasons. 4The decision by Member Anforth is a general decision of this Tribunal: see s 29 of the Act and NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 at [39]-[51]. This decision may be appealed to the Appeal Panel under ss 80 and 32 of the Act. The Appeal 5The appellant appeals from the decision of 16 May 2014. All the orders made on 16 May 2014 are challenged. 6The appeal was filed on 28 May 2014, well within the 28 day time limit pursuant to Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 ("the Rules"). In answer to question 12B on the Notice of Appeal, the Appellant seeks leave to appeal. 7The appeal is said to raise questions of both law and fact. 8The appeal was heard on 24 September 2014 and the decision was reserved. 9For the reasons following, the Appeal Panel has decided: (1)the appeal should be dismissed in relation to the questions of law which were raised; and (2)Leave to appeal should be declined so far as questions of fact were raised. Grounds of Appeal 10The appellant lists 7 separate grounds of appeal which were a little more discursive than is set out below but which may be summarised as follows: (1)Ground 1: The MD Act is state legislation, binding on dealers in NSW while Agrison is solely based in Victoria. The MD Act therefore does not apply and there is an error of law in applying the incorrect law to the this matter. (2)Ground 2: The Australian Consumer Law (the ACL) has replaced the CC Act and the Fair Trading Act 1987 (NSW) (the FT Act) and those statutes are therefore obsolete and should not have been relied upon in this decision. (3)Ground 3: Goods guaranteed to be of acceptable quality - that is, free from defects: this argument is purely based on the slasher but the Tribunal found the tractor was not "fit for purpose". Further, the slasher was not "unfit for purpose" if it was used for purposes for which it was designed. In addition, the "free of defects" section in the reasons is solely based on the slasher, not the tractor. (4)Ground 4: Acceptable appearance - the Tribunal has not had regard to the price of the machine, the brand being one of the cheapest in the market and that the appearance does not affect the function of the frame or the front end loader. (5)Ground 5: Safe - there is no evidence that the machine is unsafe and submissions to that effect were unsubstantiated. (6)Ground 6: Clause 93 [a reference to [93] of the decision] - in this paragraph the decision makes reference to evidence presented by the respondent when the appellant was not present. The General Member's statement that "there is no unfairness to the respondent as he had the opportunity to attend the hearing" is a serious miscarriage of justice. (7)Ground 7: Clause 117 [a reference to [117] of the decision] - there was no representation that the tractor was new, or as new, and the appellant did not engage in misleading and deceptive conduct. 11As the Appeal Panel understands it, the appellant, in the above grounds, is specifying in substance 4 different categories of grounds of appeal: (1)errors of law in relation to the jurisdiction of the Tribunal under, or in the application of, the MD Act, the CC Act and the FT Act - grounds 1 and 2; (2)factual findings were against the weight of the evidence - grounds 3 and 4; (3)factual findings where there was no evidence to support the finding or, alternatively, the factual findings that should not have been made - grounds 5 and 7; (4)procedural unfairness - ground 6. Leave to Appeal 12Section 80 of the Act, makes provision as to when an appeal is as of right or when leave must be obtained: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 13The grounds 1 and 2 which relate to error in the application of various statutes, grounds 5 and 7 in so far as they contend that there was no evidence to support certain findings and ground 6 relating to procedural unfairness, all raise questions of law and leave to appeal is not required. 14Grounds 3 and 4 which relate to the findings that should have been made or the weight which should have been given to certain evidence raise questions other than a question of law and leave to appeal is required in respect of them. In so far as grounds 5 and 7 raise the issue that the findings referred to should not have been made, rather than the issue that there was no evidence to support those findings, leave to appeal would also be required. 15Clause 12(1) of Schedule 4 of the Act provides a strict regime in relation to an appeal against a decision made in the Consumer and Commercial Division of the Tribunal. It is in the following terms: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 16As noted above, the appellant does seek leave to appeal and in doing so relies on the grounds that in relevant respects the decision: (1)was not fair and equitable; and (2)was against the weight of the evidence. The Appellant's Case 17In relation to grounds 1 and 2 concerning the MD Act, the CC Act and the FT Act, the appellant submitted that the MD Act was NSW legislation and so was not binding on the appellant company which is incorporated in and based in Victoria. On this basis it was said that any reference to that Act should be struck out as it involved an error of law. The finding of a breach of the MD Act was thus not open to the Tribunal. 18In addition, it was submitted that the CC Act and the FT Act have been replaced by the Australian Consumer Law and those Acts are therefore obsolete. Thus, the decision could not be based on those Acts and it was an error for the Tribunal to base its decision on them. 19As to procedural unfairness, it was submitted in effect that the Tribunal relied on evidence submitted by the respondent (the applicant in the proceedings at first instance) to the Tribunal at the hearing on 17 September 2013, being certain measurements of the equipment or parts of the equipment, and the appellant was not present at that hearing, having been advised by the Tribunal that the hearing would be adjourned because of administrative errors or difficulties. Although, the Tribunal stated at [93] that the hearing proceeded and that the appellant suffered no unfairness "as they had the opportunity to attend the hearing", in fact, the appellant was ready, willing and able to attend the hearing but did not do so on the advice of the Tribunal itself. Contrary to the appellant's submission that the subject measurements should be struck out on the basis of procedural unfairness, this was not done and the appellant has suffered a miscarriage of justice as a result. 20In relation to the factual matters, the Appeal Panel understands the appellant to be relying on submissions to the following effect both in relation to the question of leave to appeal and in relation to any appeal if leave were granted: (1)Decision not fair and equitable: (a)the Tribunal preferred the evidence provided by the respondent in the form of photographs which were not substantiated by evidentiary calculations or by qualified personnel; (b)the Tribunal did not take account of the appellant's submissions and evidence and displayed a biased attitude to the appellant's submissions; (c)the engineer's report relied upon by the appellant was from a highly qualified engineer, was not challenged in cross examination and was largely uncontested and the Tribunal should have accepted its conclusions; (d)the assertions made by the respondent's mechanic Mr Tatarko were made without calculations and were unsupported by any literature or knowledge of the particular industry and should not have been accepted; and (e)overwhelming preference was shown, incongruously, for the initial report of a mechanic over the expert report of an engineer. (2)Decision against the weight of the evidence: (noting that there is some overlap with the previous category of submissions): (a)the Tribunal failed to take account of the appellant's evidence suggesting the respondent used the slasher improperly, driving over rocks and thereby causing damage to the gearbox. (b)in deciding that the tractor was not fit for its intended purpose, the Tribunal failed to take into account adequately the view of the expert engineer. Also, there was evidence before the Tribunal that the slasher was not designed for the purpose of cutting volcanic rocks and that it was fit for its known and intended purpose, such evidence not being adequately taken into account. (c)the conclusion that a bracket needed replacement for aesthetic reasons was based merely on photographs provided by the respondent and with a complete disregard for the opinions of the engineer who was called to give evidence by the appellant. (d)the Tribunal did not have regard to the price of the tractor and the fact that the appellant supplied the cheapest tractors in the market and while the paint work was smooth and free from bubbles and runs and was in good condition it cannot be expected to be of a standard expected of a Mercedes Benz machine. (e)there was no misleading and deceptive conduct and no inducement of the respondent into the sale. The appellant did not at any stage represent the tractor to be new or "as new". The respondent was well aware the tractor was second hand. 21The submissions referred to above also covered the factual matters in relation to which it was said that there was no evidence to support the Tribunal's findings. Respondent's Reply 22The respondent provided a formal Reply to Appeal including a statement of opposition to leave being granted (in response to item 10 of the Reply to Appeal) and a "Reply to Grounds" (in response to item 8 of the Reply to Appeal). 23The respondent opposed granting leave to appeal and made submissions, as the Appeal Panel understood them, to the following effect in relation to both on the question of leave and on the appeal itself: (1)The grounds of appeal in relation to the application of the MD Act, the CC Act and the FT Act were misconceived and the Tribunal explained its jurisdiction in [37] of the reasons for decision. (2)In relation to the evidence, the Tribunal considered all of the evidence and determined that the respondent's evidence carried more weight. The reasons indicated that in relation to the appellant's expert engineer's report that it was rejected because it was based on "factually incorrect" material while Mr Tatarko's evidence resulted from two inspections and no proof of factual errors by him was provided. (3)In relation to the Tribunal hearing on 17 September 2013 the respondent submitted that no evidence has been provided of the alleged telephone call from a member of the Tribunal Registry on that day, that the appellant was aware of the hearing and that the evidence provided by the respondent on that day (being "pieces of the tractor") was relevant and would have been accepted by the Tribunal even if the appellant had been present. 24In his submissions, the respondent also stated that while he was aware he was purchasing a second hand tractor, he did not know that he was purchasing a tractor with numerous defects. He submitted that the Tribunal's conclusion that he was misled as to the condition of the tractor as it did not correspond with the description given by the appellant was correct. 25In summary the respondent submitted the appellant "has no grounds of appeal". Decisions on Questions of Law Ground 1 26The Tribunal below dealt with the MD Act at [157] to [161] and concluded at [161] that the appellant had not complied with the "statutory guarantee" contained in s 27 of that Act. Section 27(1) provided: 27 Obligations of dealer to repair defects (1) Except as provided in this section and sections 28 and 29, where a motor vehicle of a description specified in Column 1 of Schedule 1 is sold by a dealer and before: (a) the vehicle has been driven for the number of kilometres after being manufactured or so sold, as the case may be, specified opposite the description of the vehicle in Column 2 of Schedule 1, or (b) the expiration of the period, specified opposite the description of the vehicle in Column 3 of Schedule 1, after the vehicle is so sold, whichever first occurs, a defect appears or occurs in the vehicle, the dealer shall, whether or not the defect existed at the time of the sale, at the dealer's own expense, repair or make good, or cause to be repaired or made good the defect so as to place the vehicle in a reasonable condition having regard to its age and the dealer's obligation to do so shall be deemed to be a term of the contract of sale relating to the vehicle. 27Section 28(3)(d) of the MD Act had the effect, however, of excluding a vehicle such as the tractor in the present case from the operation of s 27. Section 28(3)(d) was in the following terms: (3) Section 27 (1) does not apply to or in relation to the sale of: ... (d) a commercial vehicle ... 28A "commercial vehicle' was defined in s 4(1) of the MD Act as meaning "a motor vehicle constructed or adapted principally for ... agricultural use". 29Accordingly, that Act did not relevantly apply to the appellant in the present case in any event. To that extent, the Tribunal below made an error of law. That error does not, however, have the consequence that the appeal should be allowed and the decision should be set aside. The Tribunal at first instance made it clear that its decision was not based solely on a breach of the MD Act. At [162], it held: Of the six potential breaches of the ACL, five have been established on the facts. The Tribunal's finding include that the respondent has breached the express oral warranty at common law given by the respondent [appellant] concerning the quality of the tractor and slasher; and breached the implied guarantee that goods will be of acceptable quality (section 54 ACL), fit for disclosed purpose (section 55 ACL); and has breached the guarantee under the Motor Dealers Act 1974. Any one of these breaches would be a sufficient basis for the orders made below. 30From this it follows that the orders made by the Tribunal are supported by other findings of breach of the Australian Consumer Law and do not depend on the finding that the MD Act has been breached. Consequently, even if the finding based on the MD Act was erroneous, the orders should not be set aside as they were supported on other grounds. 31Under ground 1, however, the appellant did not put its case on the basis referred to in the preceding paragraphs. Rather, it argued that there the Tribunal had no jurisdiction to determine the claim based on contravention of the MD Act because it was incorporated and carried on business in Victoria not New South Wales. 32The Tribunal below discussed the question of jurisdiction at paragraphs [36] to [42] of its reasons. The Tribunal correctly found that it had jurisdiction to hear the application pursuant to the CC Act, s 7. It did not and does not obtain its jurisdiction pursuant to the MD Act. The jurisdiction under the CC Act is limited by s 7(2) in a number of ways but includes claims made in respect of goods supplied in New South Wales - see paragraph (a) of s 7(2). It was not in dispute that the tractor and slasher were delivered to the respondent in NSW under a contract of sale and thus were supplied in this State. Thus, the Tribunal had jurisdiction to hear and determine the claim on that basis. Notwithstanding this, as we determined above, s 27 of the MD Act was not applicable in this case. 33For those reasons, the appeal based on ground 1 should be dismissed. Ground 2 34The appellant's submission that the CC Act and the FT Act are "obsolete", having been replaced by the ACL, is misconceived. 35As the Tribunal stated in paragraph [43] of its reasons, the ACL is incorporated into the law of NSW by s 28(1) of the FT Act. Other provisions concerning the ACL and its application in New South Wales are found in Part 3 of the FT Act. That Act has not been repealed or otherwise rendered "obsolete" in NSW. 36Similarly, the CC Act is still in force and continues to give the Tribunal jurisdiction to hear and determine consumer claims as defined in that Act. 37There is no error by the Tribunal below as contended for in ground 2 of the grounds of appeal. As a result, the appeal on this ground should be dismissed. Grounds 5 and 7 38Ground 5 was stated as being that there was no evidence that the machine was unsafe. Similarly, ground 7 involved the contention that there was no representation that the tractor was new or as new. 39The appellant's written submissions developed ground 5 in the following way: [T]here was no evidence from Mr Madsen of his mechanic to suggest that the bracket and cabin is unsafe and dangerous. It is concluded that the bracket needs replacement for aesthetic reasons (Jeremy Banks page 4), however, the Tribunal has decided that the bend in the front end loader and cabin makes the tractor unsafe and unfit for purpose. This decision is merely based on photographs provided, and with a complete disregard for submissions made by Engineer. 40From this it can be seen that the substance of the submissions was not that there was no evidence but rather that the evidence relied upon was preferred to that of the expert Engineer, Mr Banks, relied upon by the appellant. Accordingly, it is not correct to say that there was no evidence to support the Tribunal's finding and ground 5 has, to that extent, not been made out. In so far as this ground should be treated as raising the question of whether the factual finding as to the tractor and slasher being unsafe should have been made, leave to appeal would be required. 41As to ground 7, that there was in fact no representation that the tractor was new or as new, this can be taken as raising the question of whether there was any evidence to support such findings. The finding made was that the tractor was described as being "as new" and the slasher was new - see for example at [1]. As the Appeal Panel understands it, there was no dispute but that the slasher was new. As to the state of the tractor, the Tribunal's analysis was at [142] to [145]: 142 The applicant [Mr Madsen] ... claims that Mr McFarland described the tractor 'as being in "as new" condition, with only 12 hours on the meter". 143 The applicant claims that he specifically asked whether the tractor had any faults and why it was being traded with so few hours. In response to which he was told that the original purchaser required a larger horsepower tractor, and that the tractor was in as new condition [foot note 24 referred to Mr Madsen's Final Submissions (5 December 2013) p1.] 144 The Tribunal accepts the Applicant's evidence and where it conflicts with that of the respondent, the applicant's evidence is to be preferred. 145 In the light of the findings above, the Tribunal is satisfied that the respondent made objectively false and misleading representations to the applicant which induced the applicant to enter the sale. 42From this it is clear that there was evidence to support the finding that a representation was made that the tractor was in as new condition. Accordingly, ground 7 to the extent that it raised a question of law has not been made out. Whether leave to appeal should be granted in respect of that ground will be addressed below. Ground 6 43This ground was based on the contention that there had been a lack of procedural fairness accorded to the appellant as a result of what occurred on 17 September 2013 when a directions hearing had been scheduled in this matter before the Tribunal. The references in the reasons for decision as to what occurred are found at [30] and [93] and are as follows: 30 The matter came before the Tribunal on 17 September 2013 for another hearing. Only the applicant was physically present; the respondent did not attend. By consent, the hearing was adjourned to a date to be fixed by the Registrar. 93 In other words, Mr Banks [the appellant's engineering expert] considers slasher to be not defective but damaged, and the applicant to be responsible for the damage. However, this conclusion is premised on the measurement of the slasher blades which are demonstrably incorrect. This was physically prove to the Tribunal by the applicant on 17 September 2013, and is evident from applicant's the photographic submissions illustrating measurements. [footnote 19 - Paul Madsen, Submission (17 October 2013)] There is no unfairness to the respondent [appellant] as they had the opportunity to attend the hearing, and have been supplied with hard copies of these submissions [apparently those referred to in footnote 19]. Photo F depicts the entire length measured; the red numbers on the tape at 100mm intervals, and the black indicia of 10mm segments in between them, are clearly visible, and, when counted, depict a measurement of 850mm. This figure is verified by a close-up picture of the measuring tape and slasher blade in Photo G. 44Although what actually happened on 17 September 2013 was somewhat unclear, on the basis of the written material before the Panel on the appeal and the oral statements of the parties at the appeal hearing, the Appeal Panel finds that a directions hearing was scheduled to take place on 17 September 2013. On that date, the respondent attended in person but there was no appearance for the appellant. The Appeal Panel is prepared to accept that the appellant had, somewhat late in the piece, informed the registry that the appellant would be attending by telephone. In addition, when it was discovered that no telephone was available at the hearing venue, the registry did contact a representative of the appellant to inform it that because there was no telephone available the directions hearing would need to be adjourned. However, the Member of the Tribunal who was to conduct the directions hearing was present in the hearing room as was the respondent. Without a directions hearing taking place, the respondent, who had brought the slasher blades with him together with some measurements, drew the Member's attention to this material. The Member told the respondent that he should take photographs of the blades and the measurements and provide copies to both the Tribunal and the appellant. Nothing further occurred on that occasion. The photographs and the respondent's explanation were provided to the appellant in the second half of October 2013. This material was what was identified as "Paul Madsen, Submission (17 October 2013)" in footnote 19 of the reasons for decision. 45The matter was heard on 4 December 2013 and the appellant had the opportunity to put on final written submissions after the end of the oral hearing. 46The appellant contended that this amounted to a failure by the Tribunal to afford it procedural fairness and thus the Tribunal had fallen into error in the manner in which it had conducted the proceedings. 47In submissions, the appellant was unable to point to any prejudice that had suffered as a result of what occurred on 17 September 2013. The Appeal Panel finds that the appellant, having received a copy of the photographs and the other material contained in the Submission of 17 October 2013 did have the opportunity to address the issues raised by that information before the final hearing and indeed by way of written submissions after the end of the oral hearing. 48In relation to procedural fairness, Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1 held at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 49The Appeal Panel is of the view that the appellant suffered no practical injustice as a result of what occurred on 17 September 2013. There was no failure by the Tribunal to afford procedural fairness to the appellant. 50Consequently, the appeal based on ground 6 should also be dismissed. 51Thus, the appeal to the extent that it is based on questions of law should be dismissed. Decision on Leave to Appeal 52The appellant requires leave to appeal in respect of grounds 3 and 4 and, to the extent that they raise factual challenges to the findings, grounds 5 and 7. 53Under c 12(1) of Schedule 4, which has been set out above, the Appeal Panel may only grant leave to appeal if it satisfied that the appellant may have suffered a serious miscarriage of justice because the decision was not fair and equitable, was against the weight of the evidence or there is significant new evidence that was not reasonably available at the time of the hearing. 54The appellant seeks leave to appeal on the grounds that the decision: (1)was not fair and equitable; and (2)was against the weight of the evidence. 55In relation to the question as to whether a "serious miscarriage of justice" has occurred, the appellant may have suffered a substantial miscarriage of justice because of one of the relevant circumstances referred to in cl 12(1)(a), (b) or (c), where there is 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 not occurred before the Tribunal at first instance (see Collins v Urban [2014] NSWCATAP 17 at [68] to [76]). 56For the purposes of this appeal, the Appeal Panel accepts that had the decision not been fair and equitable, or if the decision was against the weight of the evidence, then the appellant may have suffered a serious miscarriage of justice. The issues to decide are: was the decision fair and equitable, or was it against the weight of the evidence. Was the Decision not fair and equitable? 57For the decision to be fair, it must be free from bias, dishonesty or injustice. The decision must be arrived at legitimately applying normal procedures and legal principles. For the decision to be equitable, it must be impartial and reasonable. In this case, the Appeal Panel is not satisfied that the appellant has demonstrated the decision is not fair and equitable. 58There is no indication in the decision or otherwise that the Tribunal below was either biased or not impartial. The Member considered carefully the evidence and submissions provided by both parties and his findings were made following a consideration of that evidence and those submissions without any suggestion of partiality. Partiality is not established by the fact that the Member preferred the evidence of one witness to that of another or that he did not accept the evidence of an engineer instead of that of a mechanic, in circumstances where the Engineer's opinion was based on assumptions of fact that were not correct. There is no indication that the Member failed to permit either party properly to present their case. Based on the Member's consideration of the evidence as it was set out in some detail in the reasons for decision, the Appeal Panel considers the decision to be reasonable (in the sense of having a rational basis deriving from the evidence) and clearly explainable in terms of the evidence before the Tribunal and the applicable law. Furthermore, the Member did not always find in favour of the Mr Madsen (see paragraphs [135]-[139] of the decision). 59The Appeal Panel has already concluded that the Tribunal below did not fail to accord the appellant procedural fairness as a result of what occurred on 17 September 2013 and this aspect of the proceedings does provide a basis for concluding that the decision was not fair and equitable. 60Thus, the Appeal Panel is not satisfied that there is any proper basis for characterising the decision as not fair and equitable. Decision against the weight of the evidence. 61In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel has also summarised the principles in relation to when a decision is against the weight of the evidence at [77]: [77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: ... . (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) 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 [Citations omitted] 62Accordingly, the appellant has to show that the conclusions reached by the Tribunal were not reasonably open on the material before it. 63As to ground 3 which related to whether the goods were of acceptable quality and fit for purpose, the substance of the appellant's point was that the slasher was not defective and thus the Tribunal should not have found that the "package" in its entirety was not of acceptable quality or not fit for purpose. 64The Appeal Panel accepts that the Tribunal found at [96], in a section headed "Free from Defects (Slasher)" ([86] to [96]), that "[t]he slasher itself may not be defective but its supply as part of a package with the particular tractor made it unfit for its known and intended use". This, however, followed an earlier conclusion that the tractor was defective - see for example at [85] on the basis set out at [69] to [84]. Further, the Tribunal's relevant conclusions concerning how the slasher and tractor worked together and the suitability of the slasher for the intended use are found at [64] where the Tribunal held: These facts cumulatively indicate that the slasher provided to the applicant [respondent] is not compatible with the applicant's tractor, and is only fit for very light use, such as mowing lawns. It is not fit for use on regular, ungroomed paddocks. 65The Appeal Panel does not accept that these findings were against the weight of the evidence. 66As to ground 4, this ground challenged whether the conclusion that the tractor was not of acceptable appearance was erroneous because the Tribunal has not had regard to the price of the machine, the brand being one of the cheapest in the market and that the appearance does not affect the function of the frame or the front end loader. 67The Tribunal dealt with the question of acceptable appearance at [65] to [68]. From these paragraphs it appears that any area of dispute was very limited. The Tribunal noted in the paragraphs that: (1)the chassis or front frame work was lop sided or twisted; (2)the paint work had been resprayed and, according to the appellant's engineer was "in general ... smooth and free from ... foreign bodies and runs" and according to Mr Madsen was a poor job; and (3)there was silicon in the cab adjoining the roof which the appellant's expert said was "unique to Mr Madsen's tractor" and which Mr Madsen said was excessive. 68The Tribunal then concluded at [68]: However, what the respondent [appellant] has not addressed is the obviously loop [sic] sided chassis, why the paintwork [we take this to refer to the resprayed paintwork] was needed on such a young vehicle and why the silicon was necessary. The appearance was not satisfactory. 69It is implicit in this reasoning that the Tribunal was taking into account not only the appearance of the tractor but also other relevant circumstances such as the age and similar matters when assessing whether the appearance was acceptable. The conclusion was not against the weight of the evidence, as explained above. 70As to ground 5, this concerned the conclusion that the tractor was not safe. In its submissions the appellant submitted that "[t]his decision is merely based on photographs provided, and with a complete disregard for submissions made by Engineer". Whilst this submission acknowledges that the conclusion was based on some evidence, it is not correct to say that the Tribunal's conclusion was based "merely" on photographs. It was based upon: (1)the material which had supported the finding that the tractor was defective - see [97]; (2)the opinion of the mechanic called by the respondent - see [97]; (3)structural flaw identified previously and other specific problems - [99]; (4)the defective clutch pedal (although the Tribunal noted that Mr Banks, the appellant's engineer, had been unable to reproduce this fault) - [100]. 71In these circumstances, the Appeal Panel is not satisfied that the conclusion that the tractor was unsafe was against the weight of the evidence. 72As to ground 7 which related to whether the Tribunal should have concluded that the appellant represented that the tractor was as new, the Tribunal identified and considered the evidence at [142] to [145]. There obviously was evidence to support the conclusion and there is nothing in the reasoning of the Tribunal or the submissions of the appellant which would provide a satisfactory basis for concluding that the Tribunal's conclusion was against the weight of the evidence in the sense explained above. The Tribunal's finding was reasonably open on the material before the Tribunal and was not against the weight of the evidence. Conclusion on Leave to Appeal 73On these bases and in the light of the Panel's conclusions that the decision was fair and equitable and was not against the weight of the evidence, the Appeal Panel is not satisfied that the appellant might have suffered a substantial miscarriage of justice on either of the bases specified in cl 12(1) of Schedule 4 to the Act upon which the appellant relied. Consequently, the Panel's discretion to grant leave to appeal was not enlivened. Accordingly, the application for leave to appeal should be refused. Conclusion and Orders 74It follows from what has been said above that the Appeal Panel is of the view that the appeal on questions of law should be dismissed and the application for leave to appeal on other grounds should be refused. 75Accordingly, the Tribunal makes the following orders: (1)Leave to appeal is refused. (2)The Appeal is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2014