Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Garabedian v Grays (NSW) Pty Ltd [2016] NSWCATAP 123 Hearing dates: 29 March 2016 Date of orders: 08 June 2016 Decision date: 08 June 2016 Jurisdiction: Appeal Panel Before: A Coleman SC, Senior Member S Thode, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL — Civil and Administrative Tribunal (NSW) —Consumer and Commercial Division — no question of principle. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Devries v Australian National Railways Commission (1993) 177 CLR 472 Pholi v Wearne [2014] NSWCATAP 78 Category: Principal judgment Parties: Hritioun Garabedian (Appellant) Grays (NSW) Pty Ltd (Respondent) Representation: Appellant (in person) and with leave represented by Ms Brodskaya Susan Dixon for Respondent File Number(s): AP 16/09094 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 16 October 2015 Before: P French, General Member File Number(s): GEN 15/67085 reasons for decision Background 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal. The reasons for the decision of the Tribunal were published on 12 February 2016. 2. The case concerns a claim by the appellant for loss and damage following the purchase by him of an LG front loader washer/dryer from the respondent. The appellant claimed that the machine malfunctioned spilling water into his flat causing loss and damage. 3. The Tribunal dismissed the appellant's claim. For the reasons that follow we would refuse the appellant leave to appeal and would dismiss the appeal. The Proceedings Below 1. The matter had been before the Tribunal on several occasions. At the first date allocated for hearing the appellant did not attend. The matter was heard in his absence. The respondent has, at all relevant times, accepted that the machine was defective when it was sold to the appellant. It had refunded the purchase price to him. It was ordered by the Tribunal, at that hearing, to pay to the appellant the costs incurred by the appellant in returning the machine to the respondent. It has sent a cheque for that amount to the appellant but that cheque has not been cashed. 2. At the hearing where the orders were made which are the subject of the appeal, the appellant was late in attending. There is a dispute as to how late he was, and it is unnecessary to resolve that dispute. The matter was, however, in a group list and the Tribunal only had a limited time to allocate for its hearing. We were informed that both parties elected to have the matter heard on that day, rather than receive another date. 3. Because of the earlier concessions by the respondent that the machine was faulty, at the hearing before the Tribunal the only issue was the entitlement of the appellant to compensation for consequential damage and loss incurred because of an alleged malfunction of the machine on each of 23 and 24 July 2015. It was alleged by the appellant that the machine malfunctioned on these days by overfilling and not draining water which resulted, when the door of the machine was opened, in water spilling and flooding areas of his apartment, damaging the carpet, a laptop which was on the floor at the time, and a timber chest of drawers. 4. The appellant claimed a total of $4,381.00 for the following items by way of damages: 1. Carpet replacement- $1,700; 2. Delivery/courier to return machine - $150 (this was the amount that the Tribunal had previously ordered the respondent to pay and for which it had tendered the cheque which the appellant had not cashed); 3. Damage to laptop - $1,196; 4. "Non-pecuniary loss" or "moral damages" (as the appellant described them)- $1,000; 5. Tribunal application fee - $135; and 6. Tolls and parking - $200. 1. The appellant gave evidence as did a Ms Brodskaya. The appellant also relied on photographic evidence and invoices for the alleged damage to the carpet and for the replacement of the laptop. 2. The respondent relied on evidence from Mr Ghahramani, its Technical Services Manager, together with other photographic evidence. Although the transcript of the hearing was not before the Appeal Panel, we were told, and it is apparent from the reasons of the Tribunal, that the representative of the respondent cross-examined the appellant. 3. The Tribunal rejected the appellant's arguments and dismissed the application. It found: 1. The appellant had failed to discharge the burden of proving that he had suffered any consequential loss as a result of any breach of contract or otherwise; 2. More particularly, the Tribunal held that there was no acceptable evidence that the machine malfunction extended to the door opening whilst the drum was full of water or that there was a failure of the drainage function. The Tribunal accepted in this regard the evidence led by the Technical Services Manager of the respondent that when the drum was filled with water, the door would have to be forced open for water to spill out and that water would drain if the machine cycle was allowed to finish. The Tribunal rejected the appellant's evidence on this issue and found that his evidence and the evidence of Ms Brodskaya, was untruthful. 3. The Tribunal rejected the appellant's claims that the flooding caused the damage to the carpet at the flat. It noted that the machine was in a tiled area in the appellant's flat with a drain and found that it was difficult to accept and did not accept, that any water which may have spilled from the machine (which spillage the Tribunal had already rejected as having been been caused by any relevant malfunction of the machine) would have flowed so extensively throughout the property. 4. Secondly, the Tribunal found that the pattern of water spreading on the photographic evidence supplied by the appellant was consistent with the water having been splashed on the carpet from above. The Tribunal held that the appellant had concocted the evidence of the alleged flooding, or at least, sought to significantly embellish any flooding that actually did occur as a result of any malfunction of the machine. The Tribunal was persuaded on the evidence that much of the flooding was caused by water being splashed on the carpet from height and not from flooding outwards from a single source across flat carpet. 5. The Tribunal rejected the appellant's claim that one or both of the flooding incidents resulted in damage to a laptop computer which was allegedly lying on the floor of the bedroom at the time. The appellant had submitted a photograph of a laptop computer lying on a wet section of carpet and a Harvey Norman invoice for the supply of a replacement computer and associated software accessories in support of this aspect of the claim. The Tribunal noted that at the hearing the appellant was asked to explain why it was that the laptop computer was left lying in a puddle of water to be photographed, rather than being immediately removed from harm's way. The Tribunal found that the appellant could not provide a satisfactory explanation for that question. Further, the Tribunal held that the appellant had submitted no evidence from an appropriately qualified person to prove that the laptop was, in fact, damaged and which described the cause and nature of any damage, or which explained why the laptop could not be repaired. As such, the Tribunal held that there was insufficient evidence before it to establish that the appellant's laptop was in fact damaged by the alleged flooding. 6. The Tribunal also rejected the appellant's claim that a chest of drawers situated in the bedroom was also damaged by one or both of the flooding events. The Tribunal held that the appellant had submitted no objective evidence to support that aspect of the claim and the only photographic evidence tendered by the appellant partially depicted a chest of drawers but that chest of drawers was not apparently sitting on that carpet and no damage was depicted in the photograph. As such, the Tribunal held that there was no evidence before it such that the appellant could succeed on this aspect of the claim. 7. The final element of the appellant's claim was his claim for compensation for non-economic loss. The Tribunal held that the respondent had acted properly and reasonably when the appellant had reported the malfunction of the washer/dryer and the return of the defective machine was accepted by it and a full refund was issued. The Tribunal held the appellant had not made out any entitlement to compensation for damage and loss alleged to have been consequent upon the malfunction of the machine. The Tribunal held that there was no reasonable basis for the appellant's claim for economic loss. The hearing of the Appeal 1. The appellant appeared in person at the appeal and sought leave for Ms Brodskaya to represent him. We note Ms Brodskaya was a witness in the proceedings below. The respondent did not object to this course. Having regard to s 45 of the CAT Act, there ought to be a good reason why the appellant, who spoke good English and was clearly familiar with all of the issues, should not represent himself. It became apparent, however, that the appellant was very emotionally involved in the matter and asserted that Ms Brodskaya had compiled all of the paperwork for the appeal and therefore would be able to address the Appeal Panel on that material. Accordingly, in order that the hearing of the appeal proceed smoothly, pursuant to section 45(1)(b) of the CAT Act, we granted Ms Brodskaya leave to appear for the appellant at the Appeal Panel hearing. As it turned out, each of the appellant and Ms Brodskaya made submissions on behalf of the appellant. Material before the Appeal Panel 1. The appellant relied on a statutory declaration made by himself, which was neither sworn nor affirmed, but filed with the Tribunal 24 March 2016. The Appeal Panel is prepared to accept that document and (subject to what is said below) its attachments as the appellant's submissions rather than as a formal statutory declaration attesting to the truth of the matters contained in it. The statutory declaration attached some material that was before the Tribunal below but, additionally, material that was not before the Tribunal below. The Appeal Panel pointed out to the appellant that, in order to be able to rely on that material, leave would be required and the appellant would need to demonstrate that the material constituted significant new evidence which was evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. The new evidence comprises: 1. A quote to clean the carpet at the appellant's unit; 2. A quote for the repair of the computer; 3. Additional photographic evidence obtained from the internet going to the issue of water stains; and 4. A statutory declaration of a Ms Katsova who had visited the flat after the alleged incidents leading to the water damage. 1. The appellant could provide no explanation as to why it was that this material was not obtained for the hearing below. In essence, it seems that most of the evidence was gathered because the appellant has now seen the Tribunal's decision and wished to put material before the appeal panel that he thought would be relevant to counter the findings made by the Tribunal. There is no basis upon which we could find that the evidence now sought to be relied upon which was not before the Tribunal was not reasonably available at the time of the Tribunal hearing. 2. The respondent objected to receipt of the new evidence. We informed the parties that we would consider the evidence subject to that objection and make a decision as to whether or not the evidence ought to be admitted. In our opinion, it should not be admitted. There is no basis to allow the appellant to now lead additional evidence which was clearly available to him, or could reasonably have been available had he chosen to gather it, at the time of the Tribunal hearing. It is not to the point that the appellant may not have thought that the evidence was relevant at that time or did not think fit to put it on. The simple fact of the matter is it was reasonably available but was not tendered. The Appeal Panel refuses leave for the appellant to rely on that evidence. 3. We have otherwise had regard to the material contained in the appellant's "statutory declaration". 4. The respondent relied on a document filed on 2 May 2016 which contained submissions in answer to the appellant's material, some photographs and the statutory declaration of it Technical Service Manager referred to above. The Grounds of Appeal 1. The Notice of Appeal states that the orders challenged on appeal are: "Member of the Tribunal put too much weight on incorrect consideration so the applicant have lost the chance which was fairly open to him of having fair and equitable hearing, there is, in the eye of the law, a miscarriage of justice or clear injustice." 1. The grounds of appeal as set out in the Notice of Appeal are: "The ground is the breach of duty to take into account relevant considerations and to ignore irrelevant ones. Member of the Tribunal in proper exercised his discretionary power so the findings on the facts and materials in question were based on an irrelevant evidence to the subject matter from Grays (NSW) Pty Limited. As a result, he failed to take relevant material facts from applicant into account and he did not have formed dissatisfaction in accordance with law. Member of Tribunal took irrelevant consideration into account and failed to bring his attention to the material facts which he was bound to consider and which cannot be dismissed and considered as insignificant or insufficient and took into account a relevant consideration." Some relevant principles 1. It is not unusual in matters where parties appear in person, for the Notice of Appeal to be unclear with respect to the identification of grounds of appeal or errors of law. In such circumstances, and having regard to the guiding principles by which the Tribunal operates as set out in the Civil and Administrative Appeals, 2013 Act ("the CAT Act") it is appropriate for the Appeal Panel to review the stated grounds of appeal as set out in the Notice of Appeal, the material provided by the appellant and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that either may raise a question of law or a basis for leave to appeal: see the discussion in Cominos v Di Rico [2016] NSWCATAP 5 at [13]. 2. In this case, having regard to the Notice of Appeal and the material provided by the appellant in support of the appeal and having regard to the oral submissions made by the appellant at the hearing of the appeal panel, we perceive that none of the grounds of appeal sought to be raised by the appellant raise an error of law. Rather, the grounds sought to be raised as explained orally were rather that the decision of the Tribunal was not fair and equitable or against the evidence that was submitted by the appellant to the Tribunal below. There was a submission that the Tribunal had taken into account irrelevant facts, but we regard that as nothing more than the appellant disputed the factual findings made by the Tribunal. 3. As such, the appellant requires leave to appeal. The principles governing the application for leave to appeal are well known: Collins v Urban [2014] NSWCATAP 17 at [76]-[79] and [84]. Even if an appellant satisfies the appeal panel that he may have suffered a substantial miscarriage of justice in the sense explained in those passages, the Appeal Panel then retains the discretion whether or not to grant leave under section 80(2) of the CAT Act. The appellant must demonstrate something more than that the Tribunal was arguably wrong and leave to appeal will only ordinarily be granted where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or whether the Tribunal has gone about its factor finding process in such an unorthodox manner than it is likely to have produced an unfair result: Pholi v Wearne [2014] NSWCATAP 78 at [31]. 4. We are also cognisant of the principle that where the Tribunal had the benefit of seeing witnesses first hand and observing them giving evidence and then makes findings of credit, there should be a good basis to overturn such findings: see for example: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-3. Consideration and Disposition of the Appeal 1. During the hearing of the appeal, we explained to the appellant and his representative, Ms Brodskya the requirement for him to obtain leave to appeal on matters other than questions of law and what needed to be established in order to obtain leave. One of the bases put forward for leave was that the hearing was not fair and equitable in that at the hearing, the appellant was not given an opportunity to say what he wanted to say and the Tribunal only had a very limited time to hear the matter. Whilst, if substantiated, this complaint may rather be a denial of procedural fairness, we have concluded that there is no substance in the complaint. As noted above, the matter was heard during a group list in the Consumer and Commercial division. In such lists, there are often several matters to be dealt with in a limited time. As is also noted above, we were informed that the parties were told there was a limited time for the hearing of the matter but both chose for the hearing to proceed. The appellant did not tender a transcript or recording to substantiate the allegation that he was cut off or could not say all that he wanted to say. His version of events was not supported by the respondent's representative who was also present at the first instance hearing. In answer to a question from the Appeal Panel, the respondent said that the appellant had every opportunity to say what he wanted and that the Tribunal asked questions of each side who then made submissions. 2. We do not think that there is any evidence by which we could find that the appellant had been prejudiced in any way by the conduct of the hearing. We would not grant leave on this basis. 3. The balance of the appellant's oral submissions were that the Tribunal's decision was based on the wrong considerations and that the member did not "consider the right facts". We regard these submissions as no more than reflecting the appellant's dissatisfaction with the Tribunal's findings. We can see no basis to interfere with the Tribunal's findings. They were all clearly open to be made on the evidence (or lack of it) before it. For example, it was clearly open to the Tribunal to accept the evidence of the respondent's Technical Service Manager that if there was water in the drum of the machine, the door would need to be forced open for water to spill out. Once this finding is accepted, it must necessarily follow that if there was any damage to the appellant's flat by water escaping, it was not caused by the fault in the machine, rather by the conduct of the appellant in forcing the door open when there was water in the drum. The appellant submitted on the appeal that if had forced the door open the door would have been damaged in some way and there was no evidence it was. There is no evidence that this submission was made below or put to the respondent's witness. Absent that, we do not accept it. 4. In respect to the findings about the water stains not being consistent with water spilling from the machine, the appellant has not satisfied us that the Tribunal erred in making such findings. As we have noted, the Tribunal made adverse credit findings against each of the appellant and Ms Brodskya. Those findings informed, to a significant degree, the conclusions the Tribunal reached on this issue. There is no basis for us to interfere with those findings. 5. We have also had regard to the written submissions contained in the statutory declaration filed by the appellant. There is nothing in that material which would alter our conclusions that the appellant has not established that he may have suffered a substantial miscarriage of justice and that he should be granted leave to appeal. Mostly that material seeks to re-argue the matter again. There are assertions of stress and depression but no evidence to substantiate such claims. In any event, there is no evidence by which it could be concluded that any defect in the machine, or other conduct of the respondent caused such stress and anxiety. We do not suggest that if there was such evidence that the appellant would succeed in recovering under this head of claimed loss, rather, that there is simply no evidence to support such claims. The same can be said about the other heads of loss claimed above. 6. We have formed the view that the findings made by the Tribunal were open to it and the appellant has not demonstrated any error in the approach of the Tribunal or the findings it made. 7. For the above reasons the orders we therefore make are: 1. Leave to appeal is refused. 2. The appeal is 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: 08 June 2016