Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brian Lauer and Carmen Lauer t/a Grand Prix Motors v Sam Rayment [2015] NSWCATAP 32 Hearing dates: 4 February 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Appeal Panel Before: D Robinson, Principal Member K. Rosser, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed 3. The stay order made on 12 November 2014 is lifted. Catchwords: Civil and Administrative Tribunal Act 2013- Schedule 4 Clause 12 - Significant new evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Brian Lauer and Carmen Lauer (Appellants) Sam Rayment (Respondent) Representation: Mr Brian Lauer (Appellant) in person Mr Jacobs of counsel (Respondent) File Number(s): AP 14/54053 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 October 2014 Before: C Bradford, Member File Number(s): MV 14/35350 REASONS FOR DECISION Introduction 1. Mr Rayment purchased a motor vehicle from Mr and Mrs Lauer, trading as Grand Prix Motors, in April 2014. A short time after purchase the vehicle ceased to function and according to Mr Rayment requires extensive repairs. 2. Mr Rayment made a claim for the cost of repairs and incidental costs and on 16 October 2014 the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT), ordered Mr and Mrs Lauer to pay $12,018.00 to Mr Rayment. 3. Mr Lauer, on behalf of Grand Prix Motors, now seeks leave to appeal that decision. He states that he has new evidence to establish that the vehicle is not defective. For the reasons stated below, the Appeal Panel determined not to grant leave and dismissed the appeal. Background 1. On 9 April 2014 Mr Rayment purchased a used motor vehicle, a Land Rover Discovery, from Mr and Mrs Lauer for $14,995.00. The vehicle was a 2003 model, which had travelled 226,446 kilometres. 2. On 21 April 2014 whilst driving, the vehicle failed to function and had to be towed to an automotive repair shop. Repairs were estimated to cost up to $12,000. 3. Mr Rayment filed an application in the Consumer and Commercial Division of NCAT on 11 July 2014 seeking compensation for the quoted cost of the repairs and incidental expenses. 4. A directions hearing was held on 14 August 2014 at which orders were made about the provision of documents. Mr Rayment filed documents in accordance with those directions. Mr and Mrs Lauer were directed to provide a copy of all documents on which they intended to rely, to the Tribunal and to Mr Rayment, by 28 August 2014. Mr and Mrs Lauer did not file any documents. 5. Direction 7 stated: If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal. Mr and Mrs Lauer did not seek an extension of time to provide their documents. 1. In the directions, guidance was also provided to the parties in relation to obtaining legal advice and the need to present probative evidence to support their case. 2. The hearing took place on 16 October 2014. Mr Lauer appeared for himself and Mrs Lauer at the hearing. Despite not complying with the Tribunal's directions about the provision of documents, Mr Lauer produced documents on the morning of the hearing. These documents consisted of a pink slip, a Form 8 and an e safety check concerning the vehicle. 3. The Tribunal heard evidence from both parties and an order was made in favour of Mr Rayment. The Tribunal's reasons for decision were published and were received by the parties on 24 October 2014. 4. After a Notice of Appeal was filed on 7 November 2014, the Tribunal's order was stayed on12 November 2014. The Appeal Panel made directions for the filing and serving of submissions and other material on 18 December 2014 and the appeal was set down for hearing on 4 February 2015. Legislation 1. Section 80 of the New South Wales Civil and Administrative Tribunal Act 2013 (NCAT Act) provides: (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 …..of the Tribunal at first instance - as of right on any question of law, or with the leave the Appeal Panel, on any other grounds. 1. Schedule 4, Part 6, Clause 12 of the NCAT Act provides: (1) The 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). Legal Representation 1. At a directions hearing on 18 December 2014, Mr Jacobs of counsel was granted leave to represent Mr Rayment in these proceedings. 2. Mr Lauer appeared on behalf of himself and Mrs Lauer. Notice of Appeal 1. The notice of appeal was filed on 7 November 2014, within the required time period. 2. Under Grounds of Appeal, Mr Lauer states, "I beleive (sic) I was wrongly done by because I had no evidence." 1. The Notice of Appeal states that the Decision was not fair and equitable because, "I beleive (sic) I was wrongly done by because I had no evidence, I now have evidence and good solid evidence, videos of car starting and driving and also photos." 1. The Notice of Appeal states that the Decision was against the weight of evidence, because, "I know I should had have more evidence at the tribunal. I think the tribunal only went of his Sam's evidence." 1. It would appear from the Notice of Appeal that leave is sought primarily on the basis that new evidence is available. The new evidence consists of photos and a video of the vehicle taken by Mr Lauer. He states, "On 5/11/14 I went to Trivetts at Alexandria and asked the service manager can I inspect the land rover of Sam Rayment, ………….when I started the car so I took a video of the car running and the rear of the car no smoke blowing and of dash board no lights on dash except hand brake light………………" 1. Mr Lauer asserts that the new evidence demonstrates that the vehicle is not defective. He states the payment ordered should not be made, until the car has been inspected by an independent mechanic, to ascertain the true nature and cost of any repairs. 2. In his oral evidence to the Appeal Panel, Mr Lauer stated that he had not provided evidence in accordance with the Tribunal's directions on 14 August 2014 because he did not know where the vehicle was located. However, Mr Lauer acknowledged that he had not asked Mr Rayment for access to the vehicle prior to the hearing on 16 October 2014. He stated that he had not thought about asking to inspect it. The new evidence was obtained after he received the Tribunal's decision, on 5 November 2014. Mr Lauer acknowledged that that evidence could have been obtained earlier had he asked for access to the vehicle. Consideration 1. There is no suggestion that Mr and Mrs Lauer's appeal is based on a question of law and no error of law is evident on the material before the Appeal Panel. The leave of the Appeal Panel therefore must be sought. Leave can only be given if the appellant may have suffered a substantial miscarriage of justice. 2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated that the concept of a substantial miscarriage of justice refers to "a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred." (para 71) 3. For leave to appeal to be granted Mr and Mrs Lauer must demonstrate that a substantial miscarriage of justice occurred because the decision of the Tribunal was not fair and equitable or was against the weight of evidence or because significant new evidence has arisen. 4. Mr Lauer has not asserted that the Tribunal failed to conduct the proceedings at first instance in a fair manner. He was given the opportunity to file evidence to support his case. He was advised how to seek an extension of time for the lodgement of his documents, but did not do so. He was advised to seek legal advice and of the need for probative evidence to be provided to the Tribunal. Mr Lauer did not deny or dispute that he had received such opportunity and advice. 5. Mr Lauer took some documents to the hearing. He told the Appeal Panel that the Tribunal Member did not want to look at them. While this is not stated in the Tribunal's reasons for decision, it is not in dispute that the vehicle was sold without a statutory warranty or that it had a pink slip. The Appeal Panel asked Mr Lauer whether he could point to any principle of law which establishes that a vehicle that has a pink slip or is registered is free from defects. Mr Lauer asserted that this was the case, but the Appeal Panel could not be satisfied of this in the absence of evidence or support for such a proposition either in legislation or in case law. 6. Mr Lauer acknowledged that he should have provided more evidence at the hearing. In these circumstances Mr and Mrs Lauer's assertion that the Tribunal decided the matter on the basis of Mr Rayment's evidence only cannot support a conclusion that the decision was against the weight of evidence. 7. Mr Lauer's appeal relies on his claim that new evidence is now available. In accordance with Clause 12 of the NCAT Act what is required is "significant new evidence……. that was not reasonably available at the time the proceedings under appeal were being dealt with." 8. The Appeal Panel was assisted by the written submissions prepared by Mr Jacobs on behalf of Mr Rayment. They state: "The material relied upon by the appellants to support their application for leave, and on the appeal if leave be granted, consists of Mr Lauer's own observations of the motor vehicle on 5 November 2014, as well as some photos and videos taken by him on that date. Importantly, there is no allegation that the above material was not available to the appellants at the date of hearing. Indeed the appellants did not avail themselves of opportunities to inspect the motor vehicle or to have the motor vehicle inspected by a qualified person. As such, there is no fresh evidence falling within Clause 12 (1) (c) of Schedule 4 of the Act …..and the Appeal Panel cannot be satisfied that the appellants may have suffered a substantial miscarriage of justice because significant new evidence has arisen." 1. Mr Jacobs also notes that the new evidence has limited probative value and disputes that the material would have had any significant impact on the outcome of the proceedings at first instance. Because a vehicle can be started and driven a short distance does not prove that it is of acceptable quality under Australian Consumer law. 2. The submission made on behalf of Mr Rayment states that the new evidence cannot be characterised as significant and in addition, it was reasonably available at the time of the first hearing, had Mr Lauer made the effort to locate and inspect the vehicle. Mr Lauer acknowledged this latter point in his own evidence. 3. The Appeal Panel agrees with that submission. The evidence on which Mr and Mrs Lauer now seek to rely is not significant new evidence and it is evidence that was reasonably available at the time of the hearing. 4. The Appeal Panel is not satisfied that Mr and Mrs Lauer may have suffered a substantial miscarriage of justice on the basis of any of the grounds in Clause 12 of Schedule 4 of the NCAT Act. In these circumstances it is not necessary to consider issues which go to the Appeal Panel's discretion to grant leave. Conclusion 1. The Appeal Panel has determined that leave to appeal should not be granted. Accordingly, the appeal and any application for leave to appeal are dismissed. Orders 1. The Appeal Panel made the following orders: 1. 1. Leave to appeal is refused. 2. 2. The appeal is dismissed. 3. 3. The stay of order made on 12 November 2014 is lifted. ****************** 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: 05 March 2015