Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lamb v Giles [2015] NSWCATAP 275 Hearing dates: 14 October 2015 Date of orders: 17 December 2015 Decision date: 17 December 2015 Jurisdiction: Appeal Panel Before: P Callaghan SC, Principal Member K Rosser, Senior Member Decision: 1. The application for leave to appeal is refused. 2. The order appealed from is confirmed. 3. The appeal is otherwise dismissed. Catchwords: APPEAL – consumer claim – questions of law – adequate consideration of Appellant's case – appeal dismissed LEAVE TO APPEAL – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1989 Fair Trading Act 1987 Cases Cited: Baker v David [2015] NSWCA 235 Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Charles Lamb (Appellant) Laurence Giles (trading as Laurence Giles Yachts) (Respondent) Representation: Both parties appeared in person File Number(s): AP 15/42605 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 August 2015 Before: M Gilson, General Member File Number(s): GEN 15/14922 REASONS FOR DECISION Introduction 1. This is an internal appeal of a decision made by the Consumer and Commercial Division of the Tribunal. For the reasons set out below, the Appeal Panel has decided to refuse leave to appeal, to otherwise dismiss the appeal and to confirm the decision made by the Tribunal. Background 1. Charles Lamb of Thora, New South Wales (the Appellant), in about 2013 became the owner of "Redwing" which is a classic vintage speedboat. The boat was built in about 1960, is of traditional clinker timber construction comprising planking on ribs held together with copper roves. It has a double cockpit with a varnished timber hull and a varnished plywood deck and is powered by an inboard V8 petrol engine. Laurence Giles trading as Laurence Giles Yachts (the Respondent) conducts, and at all material times conducted, a shipwright business based at Emerald Beach, New South Wales. 2. The boat had a chronic problem with watertightness such that when it was launched into the water, it had to be kept under way otherwise it quickly filled with water and became in danger of sinking. 3. In about August 2014 the Appellant and the Respondent entered into an informal agreement which led to them both doing work on the boat in shed space at Coffs Harbour hired for that purpose at a cost of $50.00 per week payable by the Appellant, with the Respondent to charge the Appellant $55.00 per hour plus GST for his labour and the Appellant to pay for all materials. Work was carried out under the arrangement between September 2014 and March 2015. On 18 March 2015 the Respondent sent a letter of demand to the Appellant for $11,001.34 including GST for outstanding claims in respect of the Respondent's labour, materials, and work shed hire. Subject proceedings 1. By application lodged in the Consumer and Commercial Division of this Tribunal on 25 March 2015, the Appellant sought an order that he be relieved of the payment of $8,235.64 in respect of the Respondent's claim. On 24 April 2015 the Tribunal granted to the Appellant leave for the amendment of the application so that the amount of the relief sought was $11,001.34 and orders were also sought that the Respondent pay to the Appellant $25,000.00 being rectification costs and $1,218.00 being expenses relating to an expert report which the Appellant had obtained. 2. A hearing took place at Coffs Harbour on 6 July 2015 for about half a day. Both parties appeared in person. At the conclusion of the hearing the Tribunal delivered ex tempore reasons and a decision that the applicant was to pay to the respondent $6,001.34 on or before 6 August 2015 (the appealed decision). A written decision and reasons to the same effect were published by the Tribunal on 20 August 2015, pursuant to s62(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) following a request from the applicant. Appealed decision 1. The appealed decision is presented in an ordered and apparently thorough way, with sections dealing respectively with Application, Representation, Proceedings, Jurisdiction, Applicant's evidence, Respondent's evidence, and Findings and Determination. We will note some of the significant aspects of the decision. 2. The decision recorded (at [4]) that the parties had been given opportunities to resolve the matter by conciliation pursuant to s37 of the NCAT Act but they had been unable to reach a settlement and the matter proceeded by way of a formal hearing. It explained how the case involved a consumer claim under the Consumer Claims Act 1998 (now Part 6A of the Fair Trading Act 1987). 3. The evidence presented by the Appellant and the Respondent was canvassed in the decision. The ambit of the Appellant's evidence was summarised thus at [8]: Mr Lamb provided considerable written evidence to the Tribunal. This evidence consisted of a written statement together with supportive documents such as; invoices, breakups for invoices, an expert report, copies of correspondence, and photographs. Mr Lamb also gave sworn oral evidence to the Tribunal. 1. A similar summary in respect of the Respondent's evidence was given at [11]: The respondent also provided substantial written evidence to the Tribunal. This evidence included written statements together with supportive documents such as: product specifications, invoices and break ups thereof, affidavits and references in support of Mr Giles workmanship generally, and details of qualifications and professional experience. The respondent also gave sworn oral evidence at the hearing. 1. Principal points of difference between the contentions of the parties were whether there were, as the Appellant claimed: 1. A work budget of $3,000.00; 2. An undertaking by the Respondent to make the boat watertight; and 3. Some materials used on the boat which were inappropriate for the task. 1. The decision's principal findings were: 1. [14] "…the parties failed to enter into any written agreement as to the extent of the works, and the contract sum for the works"; 2. [17] "…I conclude that the applicant has not established that the contract work was limited to $3,000. I hold that the contract entered into was a do and charge contract for labour of $55.00 plus GST per hour, plus materials and plus work shed hire of $50.00 per week"; 3. [18] The invoiced quantum of the respondent's claim of $11,001.34 is accepted. 4. [20] "…I hold that the respondent was never engaged to take all steps and do all work necessary to make the boat watertight…"; 5. [21] Certain of the materials were inappropriate for use below the waterline; and [23] to that extent the respondent's services were not performed with due care and skill; 6. [25] Fair and equitable compensation in accordance with s13 of the Consumer Claims Act to be allowed by the respondent to the applicant is $5,000.00; 7. [26] $6,001.34 is owed by the applicant comprising the respondent's claim of $11,001.34 less compensation of $5,000.00. Institution of Appeal 1. The Notice of Appeal seems principally to indicate grounds of appeal that are in the nature of complaints. These complaints are: 1. That character evidence (in the form of references) was inappropriate to have been included in the respondent's material at the hearing; and 2. That inadequate attention had been given to the expert report which had been included in the applicant's material. 1. The Notice of Appeal also seeks leave to appeal and a stay of the order appealed against. Supplementation of the appellant's complaints is set out in some detail within the Notice of Appeal and attachments to it but that supplementation comprises more matters of particulars than addition of any material issue. Consideration of Appeal 1. Each of the parties lodged a bundle of documents in support of his case in relation to the appeal. Each bundle presents as substantially a repetition of matters put forward at the hearing in Coffs Harbour. 2. At the hearing, each party represented himself. The appellant appeared in person and the respondent participated by telephone. There was comprehensive discussion between the Panel members and the parties particularly in the context of the requirements for an appeal and for leave to appeal. 3. Appeals from decisions of the Consumer and Commercial Division may be brought under s80 of the NCAT Act. That section provides that an appeal may be made as of right on any question of law, or with leave of the appeal panel on any other grounds: s80(2)(b). 4. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 noted at [11] that an appeal to the Appeal Panel is available as a matter of right only on a question of law and that it is necessary for a question of law to be stated with precision. It added at [12] that, in circumstances where appellants are not legally represented, it is apposite for the Appeal Panel to approach the issue by looking at the grounds of appeal generally and to determine whether a question of law has in fact been raised subject to any procedural fairness considerations that might arise to the respondent. 5. Without nominating exhaustively possible questions of law, the Appeal Panel in Prendergast at [13] listed the following as including, in no particular order, possible questions of law: 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. 1. The first principal complaint that the Appellant apparently seeks to advance as a ground of appeal is that references were inappropriately included in the material the Respondent put forward in the subject proceedings as they constituted character evidence. There is nothing in the appealed decision to indicate that those references were considered to be significant and we note that the Tribunal made a finding adverse to the Respondent to the extent of $5,000.00 in respect of inappropriate materials. We add that an object of the NCAT Act specified in s3 is the resolution of the real issues in proceedings justly, quickly and cheaply and with as little formality as possible. That is reinforced particularly in s36 which refers to the guiding principle to be applied in practice and procedure as "to facilitate the just, quick and cheap resolution of the real issues on the proceedings" and s38 which includes a provision that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. We are not persuaded that this complaint involves a question of law and we are also of the view that, in any event, the complaint has not been made out. 2. The second apparently principal complaint by the Appellant is to the effect that the Tribunal had given inadequate attention to the expert report which had been included in the Appellant's material. We bear in mind that it is a paramount judicial duty to consider a party's case and to address any significant or substantial issues as was discussed by Meagher JA in Baker v David [2015] NSWCA 235 at [23]. The appealed decision referred to the expert's report favourably at [19], as an "extensive report" and "(t)he author of this report appears to be well qualified to provide such a report". At [20], however, the appealed decision, while noting that the report "is somewhat damning of the respondent's work", made the finding which we have already noted at [11] above that the respondent was not engaged "to take all steps and do all work necessary to make the boat watertight"; at [20] it went on to refer to the report's estimate of between $20,000 and $25,000 to ensure watertightness of the hull and it made no award to the applicant on that issue. Nevertheless, as we have already pointed out, the appealed decision found against the respondent to the extent of $5,000 in respect of the use of inappropriate materials below the waterline on the boat. We are satisfied that the Tribunal gave due consideration to the expert report. There is no merit in this second complaint. 3. Schedule 4, cl 12 of the Act provides that for an internal appeal against a decision of the Consumer and Commercial Division (such as this) an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]…[I]t can be seen 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… [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 … 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." 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84]: 84. The general principles derived from these cases can be summarised as follows: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]: 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32], there is also the issue of discretion to be decided: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s80(2) of the Act (see Collins v Urban, supra at [80]-[84].) [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 1. We can see nothing in what the Appellant has advanced, that warrants leave to appeal. We are not persuaded that the Appellant may have suffered a substantial miscarriage of justice. The applicant was given adequate opportunity to present his case at the hearing in Coffs Harbour and his case was adequately dealt with in the appealed decision. We do not see anything in the material which the Appellant (or, for that matter, the Respondent) has presented in this Appeal which was not reasonably available at the time of the Coffs Harbour hearing. Conclusion 1. In the circumstances, the Appeal Panel makes the following orders: 1. Application for leave to appeal is refused. 2. The order appealed from is confirmed. 3. The appeal is otherwise dismissed. ******* 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: 17 December 2015