District Court New South Wales Medium Neutral Citation: Friedrich Thiebes trading as Anna Bay Auto Electrics v Kershler [2014] NSWDC 238 Hearing dates: 1 April 2014 Decision date: 01 April 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The summons is dismissed. The orders of the CTTT of 9 April 2013 are confirmed. (2) Judgment for $4,376.05 inclusive of interest to today's date entered forthwith. (3) The plaintiff pay the defendants' legal costs in the sum of $6,030. (4) The stay entered on 31 May 2013 by Lerve DCJ is discharged. (5) Exhibits retained for 28 days. Catchwords: ADMINISTRATIVE LAW - appeal from Consumer, Trader and Tenancy Tribunal - appeal on grounds of absence of procedural fairness and absence of factual basis for findings - whether failure to treat the applicant's own evidence as expert evidence amounted to absence of procedural fairness - whether a "no evidence" ground raises a question of law - whether there was "no evidence" - appeal dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28 and 35 Cases Cited: Kostas v HIH Insurances Pty Ltd [2010] HCA 32 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Friedrich Thiebes trading as Anna Bay Auto Electrics Defendant: Michael Kershler Representation: Plaintiff: Mr C Kingston (solicitor) Defendant: Mr M Fawkner (solicitor) Plaintiff: Kingston Swift Defendant: Vanguard Lawyers Nelson Bay File Number(s): 2013/142056 Publication restriction: None Judgment 1The plaintiff, by way of summons filed on 7 May 2013, appeals from a decision of the Consumer, Trader and Tenancy Tribunal ("CTTT") of 9 April 2013 and seeks orders that the judgment be set aside, as well as an interim application for a stay pending the appeal. The orders sought are set out in the form of declarations in paragraphs 3, 4 and 5 that essentially, as has been agreed in the course of oral submissions this morning, they come down to two points: (a)The first is a complaint with absence of procedural fairness; and (b)The second is the submission that the Tribunal Member erred in that there was no evidence to support any of the factual findings that he made. This being asserted to be a question of law and not a question of fact, a question of mixed law in fact (Kostas v HIH Insurances Pty Ltd [2010] HCA 32 at [90] - [91]). 2In relation to the issue of procedural fairness I should first set out the circumstances in which the claim came before the Tribunal Member and the Tribunal Member's reasons for decision setting out how he dealt with the material before him. I shall first note some extracts from the transcript which are as follows. The parties went before a Tribunal Member on 20 November 2012 and the Tribunal Member gave them the following general explanation (at T 2): "MEMBER: All right. Would you like me to pass up that blue sheet there please? Okay. So what we'll need to do then is to adjourn the matter for hearing this morning and I will just explain a couple of things about the process and how it works from this point forward. In these matters, the applicant has the onus of proof. It means that the things that you are alleging, you've got to prove. There's two parts to that, usually. First of all, you have got to prove the terms of the contract and that there's been a breach of that contract. So whatever it was that you agreed, in this case, it seems it was about repairs to your motor vehicle. So the first thing you have to prove in the proceedings is the breach of that agreement, that the work wasn't done in a proper and workmanlike manner, if that's what you're alleging. The second thing the applicant has to prove is the quantum of the breach, so the quantum of the loss, what follows from that, 'How much have I lost and how do I calculate that?' and they're the two elements of the claim that have to be proven. And the onus is on the applicant, so it is not about just coming and telling us a story or showing us a photograph or alleging that it's defective, you've got to prove it. You've got to have evidence. Usually that means you will need to get some sort of expert report. You've got to get somebody who has expertise in the field who can tell the tribunal that that is defective and it's not up to standard. If the applicant does that, the respondent will usually want to bring his own expert evidence to counter that expert evidence. RESPONDENT: No, I'm an expert. MEMBER: Yes, but, the problem is you're not an independent expert in your own matter. So if you come along and you say, 'Well, I know all about this and I'm going to be my own expert, you won't be an independent expert in your own matter.' RESPONDENT: [not transcribable] experts. MEMBER: Pardon? RESPONDENT: I have lots of experts. MEMBER: Yes, all right. On the web site, on the CTTT web site, there is a Chairman's direction for experts giving evidence in the tribunal. So what you need to do, each of you, if you are going to engage an expert, is to download a copy of those directions and provide them to your expert. APPLICANT: What do I do again sorry? MEMBER: You give to your expert a copy of the Chairperson's directions that tell the expert what they've got to do and importantly those directions made it clear that the experts' obligation is to be independent and that their obligation is to the tribunal first and the parties who is paying them second." 3After some discussion about how the applicant would obtain this without access to a tribunal, and the respondent, in the CTTT proceedings, point out that a number of the members of the Tribunal were, in fact, mechanics, the member noted this that: "Well, unfortunately that is not the system we have [meaning the system of allocating a specific member with mechanical experience]. We do however have members with motor vehicle experience who have been mechanics, and I will request that in this particular in particular the member hearing the matter is one of those." 4The respondent said to this, "So do I" (T 4). 5The applicant said he could not afford to get an expert and could he, in those circumstances, still come to the Tribunal bearing in mind that he was on a disability pension. The member said, "You can. The difficult you have got, if you don't have that evidence, is that it may be difficult for you to prove your case", and he suggested that he speak to Law Access. The respondent then said, "And I will bring an expert who will explain to you what is correct". 6Other directions were made for the filing of evidence. 7What happened in relation to that evidence is set out in paragraph 16 of Mr Ringrose's reasons for decision. Having first noted the applicant's evidence at paragraphs 4 15, which consisted of a timeline of events, a quote from Repco and an assessment of the claim, he had the following to say about the respondent's evidence: "Respondent's Evidence [16] The respondent provided no written evidence and sought simply to rely upon the material produced by the applicant. The first respondent was not permitted to provide his opinion by way of expert evidence as he had failed to provide an expert's report in accordance with the Tribunal directions. In addressing the matter through oral evidence he simply submitted that the applicant's timeline was not correct and that he had material to disprove it. He further observed that mechanics did not make errors in his workshop." 8The Tribunal Member went on to note, in paragraph 17: "Although no satisfactory expert's report has been provided by either party it is appropriate for the tribunal to have regard to the historical evidence produced by the appellant and to consider whether that evidence, in the absence of any response by the respondent, establishes an entitlement to enable the applicant to recover compensation." 9There follows a comprehensive summary of the information obtained by the Tribunal Member in the course of the hearing. 10The first ground, which is the ground of absence of procedural fairness, is based on assertion that essentially from page 2 onwards of the transcript, to quote the solicitor for the plaintiff, the plaintiff was denied procedural fairness in the CTTT in that he was denied the opportunity to give any evidence or address the evidence in the CTTT, and was not given the opportunity to reply to the Leroy Scott/Repco report. The basis upon which there is asserted to be absence of procedural fairness needs to be viewed in context of the nature and purpose of the CTTT. 11The CTTT is entitled to determine its own procedure, see s 28 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Act"), and is not bound by the rules of evidence. It must of course proceed by way of the rules of procedural fairness (s 28(2) of the Act) and must of course ensure that the parties to the proceedings are given a reasonable opportunity to respond (s 35 of the Act). However, where any party to any litigation is given the entitlement to lead evidence and elects not to do so, as is clearly the case here, the fact that no such evidence is led is a decision taken by that party. The burden does not lie upon the member to come down from the bench, sit beside the parties and assist them with the conduct of their case. 12Although administrative in nature, the CTTT is, nevertheless, a part of the adversarial system. In addition, I note the explanation given by the plaintiff to the Tribunal when he sought to lead this evidence in the hearing, despite having failed to serve it, the respondent said (at T 16), "There is lots of witnesses for this." The following exchange then occurred: "MEMBER: No, no, Mr Thiebes, just bear in mind that all of this material has been before you to answer it, and it hasn't been answered, so RESPONDENT: I didn't know, I didn't know. MEMBER: Well, you were in the hearing room in the tribunal when the directions were given. RESPONDENT: Well, he couldn't provide evidence in the first hearing [not transcribable] his evidence. MEMBER: Well, it is evidence because this timeline I am going through this is evidence. RESPONDENT: Yeah, fine, but he makes it up a little bit as well. MEMBER: Well, see you haven't ever [even] said that. You haven't looked at that and said, 'Look, I want to respond to this. I say he's mixed it up.' He says that he hasn't and that's one of the problems you see. RESPONDENT: All right. But let's stick with the technical part of it, I find it more interesting. MEMBER: We're going through the technical part of it, don't worry about that. RESPONDENT: Thank you. MEMBER: But we're also going through the history of it as he has given it to me. RESPONDENT: Of course. MEMBER: And he is saying that the original head was put back on. Well, just so that you know where we're going, when do you say that you provided another head-" 13As this extract shows the plaintiff sought to deny that he had been told that he was obliged to put on evidence. 14The obligation of parties to run cases without trial by ambush has been the subject of many statements and warnings by the New South Wales Court of Appeal both before and after the passing of the Civil Procedure Act 2005 (NSW). In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Young CJ in Eq warned about the procedure of trial by ambush occurring in this Court and indeed this is the very point of there being procedural fairness in the CTTT. The plaintiff, when the respondent in the CTTT, elected to run the proceedings as he did and took the risk that he would be able to prove his case in circumstances where he had led no evidence and was essentially seeking to challenge the evidence of the applicant in the CTTT. 15Having made that tactical decision, the plaintiff cannot say that he was denied procedural fairness by a court or tribunal which had not only pointed his obligations to him but, which, when the Tribunal Member reminded him, he then claimed not to have known a submission to the Court which does not sit well with the transcript of the first day and the clear explanations given by the Tribunal Member. 16I am satisfied that there is no evidence of absence of procedural fairness in relation to the conduct of the proceedings. 17This brings me to the main ground of appeal, which is that there was no evidence upon which the findings could be made. The submission is that "no evidence ground" raises a question of law. In Kostas v HIH Insurances Pty Ltd, supra, however, there was no evidence. In the present case what the submission really is, is that the findings went against the evidence, including the applicant's evidence as challenged by the respondent, that being the evidence set out at paragraphs 4 to 15. 18An appeal to this Court can only be brought under s 67 in relation to a matter of law. When determining whether a matter is a question of law the court must be careful not to permit a plaintiff to indulge in what Buss JA in Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at [17] called "linguistic gymnastics in the formulation of the grounds of appeal". Basically, the relevant principles can be stated as follows: (a)where there is evidence in the Court below and the ground is essentially that the decision is against the evidence and the weight of the evidence that does not raise a question of law; (b)nor is a question of mixed fact and law a question of law; (c)an error is unlikely to be committed simply because a Tribunal finds facts based on wrong or doubtful or erroneous bases; (d)however, if the finding is manifestly unreasonable or takes into account material that should not have been taken into account or whether there is no evidence at all, as was the case in Kostas v HIH Insurances Pty Ltd, supra, that may amount to a question of law. 19The fundamental problem I have with the submissions of the plaintiff on this issue is that it is clear that there is great deal of evidence from the applicant in the CTTT, which included a timeline, written material, a report of an informal nature and a summary of claims in the form of a claim for $10,566.47. The assertion that the claim is based on no evidence is a slippery one in that it is a bald statement to the effect that all of the evidence of the applicant before the CTTT should have been disregarded. The basis for this appears to be that there should have been only or principally some form of independent expert evidence. Although, as the Tribunal Member pointed out to the parties, the fact that there is no expert evidence may make the job harder for an applicant but that does not mean that they are going to lose, it is simply that in cases such as this it may be desirable to have an expert report. 20The way that the CTTT works is that a member with particular expertise can be asked to sit and, in fact, this was the request of the parties, as the transcript at p 4 shows, and what has happened has been that the Tribunal Member has heard the evidence in question and has made his findings. Because, as the Tribunal Member pointed out, at T23: "I keep on saying to you that because there is nothing to contradict it I don't have to decide between the facts. I don't have to decide between which of two versions is correct. I only have one version before me." 21The respondent's somewhat intemperate response was to say, "We can stick with dreamland, can we?", a remark he saw fit to repeat. 22Again, the respondent said, and I note this was referred to by Mr Ringrose at T 23: "I'm getting a bit [not transcribable] here too because I see the facts and I have to listen to all this and we're wasting all the time. I don't know how to handle this. I'm doing this job for a long time. I would not say that I'm not making mistakes or anything like that but even the sequences are wrong." 23He does on to say, "It's my fault sorry but the fact is nobody can, if the sequence is not correct, nobody can understand what really happened." However, it was the respondent in the proceedings in the CTTT who elected not to provide a correct sequence of events. 24I have read the reasons given by the assessor, Mr Ringrose, which are clear, concise and, in my view, a full and accurate summary of the relevant events. I know that I asked the parties for some particulars of the specific parts of the judgment where Mr Ringrose, in the vernacular, "got it wrong" but I am essentially left to work this out for myself. The principal complaint seems to be the manner in which he treated the Repco invoice but, it seems to me, reading through the transcript, that the real complaint is the way that the Leroy Scott report was treated and the fact that it was permitted at all. 25Taking all of the above into account, I am satisfied that the summons should be dismissed. Orders (1)The summons is dismissed. The orders of the CTTT of 9 April 2013 are confirmed. (2)Judgment for $4,376.05 inclusive of interest to today's date entered forthwith. (3)The plaintiff pay the defendants' legal costs in the sum of $6,030. (4)The stay entered on 31 May 2013 by Lerve DCJ is discharged. (5)Exhibits retained for 28 days. ********** 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: 16 December 2014