Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gengiz v Fishburn [2014] NSWCATAP 96 Hearing dates: 21 November 2014 Decision date: 04 December 2014 Jurisdiction: Appeal Panel Before: S Westgarth Deputy President; S Thode, Senior Member. Decision: 1.Leave to appeal refused; 2.appeal otherwise dismissed. Catchwords: MOTOR VEHICLES - breach of contract -leave to appeal - blue slip Legislation Cited: Civil and Administrative Tribunal Act 2013. Cases Cited: Collins v Urban [2014] NSWCATAP 17. Category: Principal judgment Parties: Errol Gengiz (appellant) Allen Fishburn (respondent) Representation: Mr Newman Mr Balasubramanian File Number(s): AP 14/46466 (was AP 14/0288) Decision under appeal Date of Decision: 2014-06-17 00:00:00 Before: K Rosser, Senior Member File Number(s): MV13/32483 reasons for decision 1The appellant conducts an automotive engineering business and entered into a contract with the respondent (the applicant in the proceedings below) to convert a Ford F250 commercial truck from left to right hand drive. The work was performed and the respondent paid $9500 to the appellant. 2On 17 June 2014, the Tribunal's Consumer and Commercial Division awarded $9500 to the respondent on the basis that the work was not performed in a proper and workmanlike manner. The decision of the Tribunal 3The Tribunal published its written reasons for decision on 17 June 2014. 4The evidence before the Tribunal below included the sworn oral evidence of the parties and the expert opinion of Mr Gaudie, a mechanical engineering consultant for the respondent. The respondent also relied on quotes from PJs Auto Electrics, Taplins Auto Repairs, Cummins Classic Cars, Mobility Engineering. The respondent also provided a report by J Montano. 5The appellant did not tender any expert report, witness statements or other documentary material before the Tribunal below. 6As stated, a report by Mr J Montano of JC Montano Engineering Consultants Pty Ltd was before the Tribunal (the Montano certificate). Mr Montano certified the roadworthiness of the vehicle as a precursor to registration. The vehicle was registered and a blue slip was issued. The Tribunal recorded that there was no issue that the blue slip was issued but that document was apparently not before the Tribunal. 7The Tribunal considered whether the work of converting the applicant's vehicle from left hand to right hand drive was performed in a proper and workmanlike manner. 8The Tribunal placed significant weight on the Gaudie report. The Tribunal recorded that the Gaudie report identified a number of issues with the vehicle arising from the work. The issues included poor welding, a defective handbrake assembly, problems with the welding of the steering column, and inadequate fastening (three bolts as opposed to the required four) of the replacement steering box. Exposed electrical cabling was identified as a potential fire hazard and safety issue. It was also noted that the appellant does not hold relevant qualifications and his business is not licensed. Based on the strength of the Gaudie expert opinion the Tribunal arrived at a finding that the appellant "did not undertake the conversion from left hand to right hand drive in a proper and workmanlike manner". 9The relevant findings are contained at page three of the Tribunal's decision: Whilst the pink and blue slips summonsed by the respondent were not produced, there is no dispute that the vehicle was registered or that the blue and pink slips had been issued. However, given Mr Gaudie's evidence and the deficiency in Mr Montano's report referred to by Mr Gaudie, the fact that the pink and blue slips were issued and the vehicle was registered does not lead me to conclude that the respondent's work is not defective. 10The Tribunal found that weight could be placed on the Gaudie Report as Mr Gaudie's qualifications and experience were sufficiently set out and therefore his report should be accepted as expert evidence. The respondent's argument that the Montano certification should be preferred over the Gaudie opinion was rejected. The Tribunal reasoned: "I do not accept this argument, in my view Mr Gaudie's report and his oral evidence establishes sound reasons why his opinion should be preferred to the report provided by Mr Montano." 11The Tribunal accepted that the conversion to left hand drive was carried out defectively. Quotations for the cost of repair were tendered by the respondent. However, the Tribunal member noted that all quotations exceeded the original contract price and were deemed excessive. Rather than accepting the repair quotes as a reasonable reflection of the respondent's loss, the Tribunal ordered that the respondent be given a full refund of the contract price. The legislation and jurisdiction 12Mr Gengiz seeks to appeal the decision of the Tribunal. An appeal may be brought on a question of law but the appellant must seek the panel's leave to appeal "on any other grounds" (see s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act)). 13When considering applications for leave to appeal from Tribunal decisions the Appeal Panel is required to be satisfied of the matters set in clause 12 of schedule 4 of the Act. 14That clause relevantly provides that the Appeal Panel may grant leave only in limited circumstances because: (a)The decision of the Tribunal was not fair and equitable, or (b)The decision of the Tribunal under appeal was against the weight of the 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. An appeal by leave may only succeed if the appellant can establish that he may have suffered a substantial injustice. The Appeal Panel recently considered the concept of "substantial injustice" in the decision of Collins v Urban [2014] NSWCATAP 17 at [77] and [79] respectively: 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: (1)If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. ... 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. Directions and exchange of evidence 15On 25 August 2014 Wright J President and DA Cowdroy OAM QC, Principal Member, issued directions for the exchange of written submissions or any other material to be relied upon to be filed and served by 8 September 2014. The directions contain the following standard paragraph: The material on which the Appeal Panel will decide the appeal or application for leave to appeal will be the material in or attached to the Notice of Appeal or Reply to Appeal and any material filed and served in response to a direction given by the Appeal Panel. If a party wishes to rely upon any material from the Tribunal file at first instance or a sound recording or transcript to the proceedings at first instance or any other material it is the responsibility of the party seeking to rely on that material to ensure that it is filed and served with the Notice of Appeal or Reply to Appeal or in accordance with a direction of the Tribunal for the filing and service of other material to be relied upon. If it is not so filed and served, the party may not be permitted to rely on that material at the hearing. 16On 13 October 2014, contrary to directions issued and significantly out of time, the appellant filed submissions and evidence in the form of a blue slip that was not before the Tribunal below. The blue slip was attached to a statement in which the appellant affirmed that he had been able to obtain the documents by a Freedom of Information application from the Department of Roads and Maritime Services. 17The appellant requested a stay of the operation of the orders made on 17June 2014 pending the determination of his appeal. By letter dated 11 August 2014 the appellant was advised that any application for a stay should be brought on 25 August 2014. As the directions of 25 August 2014 make no mention of it, the Appeal Panel assumes that a stay was not granted. The Notice of Appeal 18By Notice of Appeal dated 15 July 2014 the appellant seeks leave to appeal from the Tribunal's decision. The Notice of Appeal form, signed by the appellant's legal representative, did not explicitly raise a question of law. The ground of appeal raised by the appellant in his Notice of Appeal stated: "the requisite fee was paid to the Tribunal, no subpoena was forthcoming and the applicant was unable to bring this piece of most probative evidence to the tribunal". 19The section of the Notice of Appeal dealing with potential fresh evidence is left blank. The section headed "evidence is now available that was not reasonably available at the time of hearing" and "when did you first become aware of the evidence" was not filled in by the appellant or his legal representative. 20The appellant does seek "leave to appeal" and the two main contentions of the appellant were that the decision was not fair and equitable: Firstly, on the grounds that the Tribunal found against the appellant despite RTA licensed engineers and mechanics approving the vehicle as roadworthy; Secondly, the Tribunal fell into error when it permitted the hearing to proceed in the absence of documents being produced by the respondent pursuant to a summons, and as pink and blue slips were not produced, the appellant was unable to tender his most probative evidence at the hearing. 21Although not specifically nominated as such by the legal representative for the appellant, we must consider whether questions of law arise on appeal. Question of Law 22The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP69 recently considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel at para 11-12 said 11 As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The Notice of Appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12 In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 23The importance of correctly identifying any question of law was noted by the Appeal Panel in Prendergast. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast cited the following at [13]: (1)Whether there has been a failure to provide proper reasons. (2)Whether the Tribunal identified the wrong issue or asked the wrong question. (3)Whether a wrong principle of law has been applied. (4)Whether there was a failure to afford procedural fairness. (5)Whether the Tribunal failed to take into account a relevant (mandatory) consideration. (6)Whether the Tribunal took into account an irrelevant consideration. (7)Whether there was no evidence to support a finding of fact. (8)Whether the decision was so unreasonable that no reasonable decision-maker would have made it 24In this appeal the appellant was legally represented but the Notice of Appeal did not satisfactorily and with any precision set out any error of law. However, following submissions from the solicitor for the appellant it appears that the error of law, sought to be relied upon were two fold. First, the Tribunal should not have ignored relevant evidence (ie the blue slip) and continued on with the hearing and secondly there was a denial of procedural fairness which we refer to as the "summons issue". 25The appellant deposed that the Tribunal proceeded to hear the matter on 13 March 2014 even though important documents had not been produced pursuant to a summons issued by the appellant. The appellant had paid for the summons but alleges that as he was never sent a copy of the summons, he was therefore prevented from serving it on its intended recipient, the Motor Transport Authority. Ultimately this resulted in the blue slip not being produced. The appellant informed the Tribunal of an "unmet" summons at the first hearing date, but the Tribunal proceeded with the hearing regardless. 26After the hearing could not be completed on 13 March 2014, the application was adjourned part heard to 17 June 2014. It is not in dispute that the appellant made no enquiry to the Registry about the missing summons. Notice of Reply 27On 22 August 2014 the respondent filed a Reply to Appeal attaching typed grounds of reply. The Reply states the appeal should be dismissed as the "order by K Rosser reveals due process was followed and E Gengiz was given fair and ample opportunity to present his case." In submissions the respondent stated that the appellant has failed to establish a proper basis for an internal appeal within the meaning of section 80(2)(b) of the Act and that the appellant has failed to establish that a substantial injustice has occurred. Question of law - consideration and decision Ground 1 - Ignoring relevant material 28The appellant's submissions were filed as an attachment to his original Notice of Appeal. 29The appellant's main point was that the Tribunal fell into error because it did not take into account the specific content of the blue slip. Because it was not contentious, the parties below submitted and the Tribunal accepted that after blue and pink slips were obtained, the car was registered for some time in 2011. The actual blue slip document was produced by the appellant for the first time on appeal. It was annexed to the affidavit of the appellant dated 10 October 2014 which was filed in the appeal proceedings. The document states that the brakes, steering and suspension were passed by the RTA inspector on its first inspection. Other aspects of the vehicle required re-inspection and only passed after further repairs. As the appellant only performed work on the brake and steering this particular reference in the blue slip assumed some significance. It was submitted that the Tribunal upon properly considering the fact that brakes and steering passed on first inspection, would have arrived at a different finding. The evidence was therefore not properly considered. 30The appellant relied on the decision of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82], per joint judgment of McHugh, Gummow, and Hayne JJs, adopting the principles enunciated in Craig v South Australia (1995) 184 CLR 163 at 179: As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 31The appellant submitted that the Tribunal failed to consider the content of the document, thereby falling into an error of law, by identifying the wrong issues, asking itself the wrong question and arriving at an erroneous finding. 32We note that the Member below found that there was no dispute that the blue slip was issued and that the vehicle was registered. The Tribunal concluded that the fact that the blue slip was issued and the vehicle registered did not lead the Tribunal to conclude that the work was not defective. 33We have come to the conclusion that the Tribunal, having considered the fact that the blue and pink slip rendered the vehicle roadworthy, precisely directed its mind to the conflicting evidence at the heart of the issues between the parties. 34The appellant was unable to point to any legal argument why the paragraphs in the blue slip referring to brakes and steering should be considered determinative of the issue that all or any of the work performed by the appellant was defective. It was no more than a report of the opinions of its author as to whether the vehicle or parts of the vehicle comply with certain inspection standards at the time of inspection. On presentation of other expert evidence it was open to the Tribunal to find that the conversion was not carried out in a proper and workmanlike manner, despite the blue slip. There was no demonstrable error in the Tribunal directing its enquiries to the mere existence of the blue slip without considering its content. 35Even if the Appeal Panel had considered the Tribunal misdirected itself by "ignoring relevant material" (the contents of the blue slip), to demonstrate an error of law, it is necessary to show that the "relevant material" was determinative of an issue in dispute. The content of the blue slip could not have advanced or elevated its status beyond that which the Tribunal found, namely that in the opinion of the certifier the vehicle upon inspection was compliant with the inspection standards referred to in the blue slip 36We therefore find that the contents of blue slip, now relied upon, do not advance the appellant's case. We are not satisfied that the tribunal has failed to consider relevant material and no error of law has been established. Ground 2 - Denial of procedural fairness and the summons issue 37Mr Gengiz argued that he did not receive the summons from the Registry and that the hearing proceeded without his most probative material being before the Tribunal. 38This ground is similar to the ground above. Had a summons been issued, and had the Tribunal adjourned the hearing, the blue slip would have come to the attention of the Tribunal and it would have considered its contents and not misdirected itself. As we have already found that the blue slip content did not give rise to an error of law, it is not necessary to consider this ground. However, if we have erred on this basis and for completeness we consider the following. 39It is not in dispute that the appellant paid $42 for a summons or that the Registry issued a summons. The Tribunal file contains a letter attaching the summons, addressed to the appellant dated 13 February 2014. 40The appellant maintains that he did not receive a copy of the summons from the Registry. He submits that as a result of the failure by the Registry to send him a copy, a summons for production of a blue and a pink slip was never served. 41A copy of a letter addressed to the appellant and attaching a copy of the summons is on the Tribunal file. Be that as it may, and even if the Appeal Panel accepted that the summons was not sent, which it does not, on the first day of the hearing on 13 March 2014, the issue of the summons was raised by the respondent but no application was made, no adjournment was sought and the hearing proceeded as listed. 42The Tribunal was unable to finalise the hearing in the time allocated and the hearing was further adjourned part heard to 17 June 2014. Again, the appellant made no enquiries to the Registry about the missing summons between paying for it on 11 February 2014 and the day of the final hearing on 17 June 2014. 43In the absence of any application by the appellant for adjournment or otherwise, the Tribunal was entitled to proceed with the hearing without further enquiry concerning the summons. 44The Appeal Panel has already found that the Tribunal did not misdirect itself by arriving at a finding without having regard to the content of the blue slip. The content of the blue slip therefore has no bearing on the outcome of the appeal. It must follow that the Tribunal did not err by proceeding to a hearing in circumstances where the appellant made no application for adjournment and the availability of the blue slip would not have altered the outcome of the hearing. 45For these and the reasons set out above the Appeal Panel is satisfied that there has been no denial of procedural fairness and an error of law has not been established. Appeal by leave "on other grounds" 46We now turn to any grounds that require leave. The Act's basic requirement is set out in section 80(2), which states that in relation to any decision other than a first instance interlocutory decision, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds. 47Two grounds relied upon by the appellant require leave: Against the weight of the evidence 48"The decision of 17 June 2014 failed to consider the respondent's case almost in its entirety." This appears to be a general allegation that the Tribunal arrived at a finding that was against the weight of the evidence. 49The evidence was considered by the Tribunal. The Appeal Panel has already decided that the Gaudie report was considered and preferred over the Montano report. The content of the blue slip was not of consequence because the Tribunal was entitled to arrive at a finding that the conversion was poorly executed even if the car was registered for a period of time. The Tribunal accepted reports from both sides into evidence. The reports were analysed in detail and the Tribunal gave detailed reasons for its decision why it preferred the respondent's evidence over that of the appellant. The ground of appeal that the appellant's case was not considered "almost in its entirety" is not established. Significant new evidence 50The blue slip was not available at the time of the hearing. 51This ground was already identified and dealt with as a question of law above. It has been dismissed. The appellant sought to rely on new material, the blue slip, to demonstrate that that the significant new evidence has arisen that was not available at the hearing. The Act provides that the Appeal Panel may grant leave where there may be a substantial miscarriage of justice because "significant new evidence has arisen being evidence that was not reasonably available at the time of the hearing", see cl(12)(1)(c) of the Act. 52For reasons set out above the blue slip was always available. The appellant simply failed to make sufficient enquiry concerning its whereabouts. The appellant had no difficulty obtaining the blue slip under a Freedom of Information application and this could have been achieved at any time before the final hearing. 53There is no evidence before the Tribunal that the blue slip could not have been obtained. The Appeal Panel is satisfied that the appellant made no attempts to serve the summons or to otherwise enforce it. He made no enquiry concerning the summons between February and June 2014. The legislation provides for the Appeal Panel to grant leave where there may be a substantial miscarriage of justice because "significant new evidence has arisen that was not reasonably available at the time the proceedings under appeal were being dealt with". The appellant has not led any evidence as to why the blue slip was not reasonably available at the hearing and this ground must also fail. Conclusion 54We do not accept that the Tribunal fell into error when it arrived at findings without an analysis of the contents of the blue slip. In light of the findings above the decision under appeal cannot be said to be against the weight of the evidence. 55The Tribunal did take into account the fact that a report of Montaro had been issued and this led to the issue of a blue slip and registration. As was conceded by the appellant at the appeal hearing, the mere issue of a registration certificate, is not of itself conclusive or probative of the issue of whether the work performed by the appellant was defective or constituted a breach of contract. 56Similarly the appellant did not seek to demonstrate that the Gaudie report was unsafe or unsound. Accordingly the Appeal Panel is not satisfied that appellant may have suffered a substantial miscarriage of justice. 57Finally in the opinion of the Appeal Panel there was no denial of procedural fairness or any other question of law. In addition, as no grounds of appeal by leave have been established by reason of cl 12(1), no appeal to the Appeal Panel may be brought and the appeal must be dismissed Costs 58Section 60(1) of the NCAT Act provides that each party to proceedings in the Tribunal is to pay its own costs. However, pursuant to s 60(2), the Tribunal may award costs in proceedings before it 'only if it is satisfied that there are special circumstances warranting an award of costs'. Section 60(3) then describes those occasions justifying an order for costs. 60 Costs (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 59The respondent submitted the factors giving rise to an order for costs as provided by s 60(2) existed. The respondent pointed to the lack of evidence presented to rebut the Gaudie report and the failure of the appellant to lead evidence to explain why the blue slip, the document at the heart of the appeal, was not reasonably available at the hearing. The appellant's case on appeal was relatively uncomplicated. The respondent submitted it has incurred costs in preparing the matter for hearing and should be entitled to reimbursement. 60We do not consider that the arguments led by the respondent point to the existence of special circumstances. In the absence of such a finding we decline to make an order for costs and instead the ordinary order should be made that each party bear its own costs of the appeal. Orders 1. The appeal is dismissed. 2. No order as to costs. 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: 04 December 2014