Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh t/as GB Penrith Truck Centre v On Road Transport Pty Ltd [2016] NSWCATAP 129 Hearing dates: 8 March 2016 Date of orders: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Appeal Panel Before: O Shub, Principal Member S Thode, Senior Member Decision: Appeal dismissed. Catchwords: Appeal – Civil and Administrative Tribunal (NSW), Consumer & Commercial Division – Internal Appeal –– Consumer Claim – due care and skill Legislation Cited: Consumer Claims Act 1998 Fair Trading Act 1989 Civil and Administrative Tribunal Act 2013 Cases Cited: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Guvindar Singh t/as GB Penrith Truck Centre (Appellant) On Road Transport Pty Ltd (Respondent) Representation: Representation for Appellant: Mr Singh Representation for Respondent: Mr Rodriguez File Number(s): AP 15/65735 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 4 November 2015 Before: D Goldstein, Senior Member File Number(s): MV14/44852 reasons for decision Introduction 1. On 20 January 2014 Mr Rodriguez, the director of the respondent company, left his Kenworth Prime Mover (the truck) at the appellant's premises for repair. Mr Rodriguez advised Mr Singh, the director of the respondent company, that the truck had a cooling problem. After inspection of the truck the appellant was advised by respondent that piston liner three had a crack in it and required repair. The engine underwent repair and was collected by the respondent on 29 January 2014 and broke down on the same day. It was returned and a chassis rebuild was undertaken. On 10 March 2014 the truck was collected again but was not in a condition to be driven. The truck was finally repaired by a third party, and fitted with a second hand engine. 2. By application filed in the Consumer and Commercial Division, the respondent sought damages in the sum of $30,929.92 for the cost of the second hand replacement engine and the fitting cost. The appellant was ordered to pay the respondent the sum of $27,025 immediately based on a finding that the appellant failed to carry out the repairs to the truck with due care and skill with the result that the truck's engine sustained damage that warranted its replacement by another repairer. 3. The appellant appeals against the whole of the amount that it was ordered to pay. The appellant's contentions include that there was no evidence to establish its liability and that the Tribunal erred at law. In the alternative the appellant seeks leave to appeal the decision. 4. For the reasons set out below, we do not uphold the appeal. In our opinion, the appeal should be dismissed Relevant statutory framework 1. The claim by the appellant was brought pursuant to section 7 of the former Consumer Claims Act 1998 NSW (the Act) which was repealed effective from 22 October 2015 with the equivalent provisions now incorporated into the Fair Trading Act (FTA). At the relevant time the Tribunal had jurisdiction to hear and determine any consumer claim brought before it. Section 3A (1) of the Act provided that a consumer claim included: a claim by a consumer for the payment of a specified sum of money that arises from a supply of goods or services by a supplier to the consumer. 1. The respondent was a consumer within the meaning of section 3 of the Act and their claim arose out of the supply of services by the appellant. The Tribunal was empowered under section 8 to make an order requiring a supplier to pay the claimant a specified sum of money. In exercising this power the tribunal is required to make "such orders as in its opinion will be fair and equitable to all the parties to the claim (see s 13 of the Act)". 2. The respondent alleged a breach of the Australian Consumer Law (ACL) set out in schedule two (2) of the Competition and Consumer Act 2010 (Cth). The ACL applies in New South Wales as part of the FTA, see part three of the FTA sections 27 to 32. Section 32 of the FTA provides that the ACL applies to a person carrying on business in New South Wales. 3. The Tribunal found that the respondent, by repairing the truck, had provided services as defined in section 2 of the ACL and in particular that the respondent was providing services referred to in section 60 of the ACL. 4. The issue for determination before the Tribunal was whether the services provided by the appellant in connection with the respondent's truck were carried out with "due care and skill" and what if any damages flowed from the breaches alleged. The tribunal referred in particular to sections 54 and 60 of the ACL. Decision at First Instance 1. The Tribunal based its decision that the work was not carried out with due care and skill by weighing up the experts' opinions tendered by the parties: Mr Philipp Scott prepared a report for the respondent dated 8 May 2014 (the Scott report) and Mr Bruce Elson prepared a report dated 16 February 2015 for the appellant (the Elson report). 2. The relevant conclusion reached by Mr Scott is quoted at paragraph 59 of the decision: The original cause of the engine overheating condition was not correctly diagnosed by the repairer as being a faulty water pump. The repairs carried out by the repairer were incomplete and of a very poor standard. The cooling system was not cleaned and the correct flow of coolant through the cooling system was not checked by the repairer. When the repairer advised the owner the truck was repaired and able to return to service, damage to the engine then resulted due to the engine overheating again. This then caused a breakdown of the lubricating oil film between the bearing slippers and the crankshaft journals. The damage to the bearings of this engine is a direct result of the engine overheat problem that was not rectified by the repairer GB Penrose truck Centre. 1. The Tribunal in weighing up the experts respective opinions concluded that it had difficulty accepting the conclusions reached by Mr Elson in his report at [66]: The difficulty that I have with Mr Elson's report is that it does not directly address the issue of whether the work carried out on the engine by the respondent was carried out with due care and skill, and whether the repairs carried out adequately addressed the overheating problem with the engine when the applicant brought the truck to the respondent for repair. 1. A number of issues were agreed between the parties' experts and were adopted as findings of fact and set out at paragraph [68] of the decision: The subject vehicle had a problem of engine loss of coolant and engine overheating when the vehicle was first presented to GB Penrith truck Centre for repairs. The service history of the subject vehicle is unknown. When GB Penrith Truck Centre accepted the job and agreed to repair the vehicle all problems associated with that repair were also accepted. The engine cooling system water filter to the subject vehicle was not connected/unserviceable at the time the vehicle was first presented to GB Penrith Truck Centre. There is no evidence of the water filter cartridge having been replaced at any time. When the first repairs to the subject vehicle were carried out by GBP Penrith Truck Centre the number three cylinder liner and piston were replaced. There is no record of any engine connecting rod bearings being repaired at the time. The second attempt at repairing the engine cooling system problem involved the replacement of all six cylinder liners and pistons. The engine connecting rod bearing were also replaced at that time. There was no evidence available of a complete engine cooling system diagnosis for coolant loss /engine overheating having been completed by GB Penrith Truck Centre or any other repairer. GB Penrith truck Centre found a water loss from the cylinder liner of cylinder three at the first attempt to repair the cool loss engine overheating problem. When it was identified that the first repair was unsuccessful any further repairs to the subject vehicle should have been specifically authorised in writing by the vehicle owner prior to proceeding with any further attempts at repairs. 1. The Tribunal accepted the joint findings of the expert. 2. In its penultimate conclusion the Tribunal found at paragraph [74] (which is erroneously referred to as paragraph [64]: [64] that the respondent did not carry out the repairs to the applicants truck with due care and skill because he did not diagnose the problem of engine loss of coolant engine overheating as arising from a faulty water pump. The joint expert findings establish that there is no evidence of the respondent diagnosing the engine cooling system for coolant loss. Moreover, both experts stated that the water filter in the truck was not operative / completely blocked. I accept their evidence. Mr Scott stated that the water pump had the impellor wheel separated from the impellor shaft with the result that no coolant was circulated throughout the cooling system of the engine. I accept that evidence. [65] The evidence is clear that the respondent thought that it had correctly ascertained the source of coolant leakage when he or Mr Balbir Singh advised the applicant that the coolant leaks were from the cylinder liners and that the sump had to be removed to find the source of leakage. Thereafter, there was testing of the engine and leakage of coolant observed to number three cylinder. [66] This may have been a cause of coolant leakage but it was not, in my view on the basis of the evidence that I have refer to the predominant cause of coolant leakage. Neither expert refers to this fact as the cause of overheating or loss of coolant. 1. The Tribunal concluded that the appellant's refusal to carry out any further work on the truck caused the respondent to incur the cost of a second hand engine in the sum of $8000 and the cost of having the engine fitted for $16,865.02. Whilst the Tribunal acknowledges that the evidence "is not as detailed as it might have been" the Tribunal accepts the evidence of loss as reasonable and makes an award for the cost of the replacement engine, the installation cost of the engine and all damages and losses suffered, including the cost of Mr Scott's expert report. Grounds of Appeal and Orders Sought 1. The appellant lodged two Notices of Appeal. 2. The appellant confirmed that the first Notice of Appeal and attached documents dated 9 December 2015 were no longer relied upon and accordingly the Appeal Panel has had no regard to it. 3. In the amended Notice of Appeal dated 24 February 2016, the appellant challenges the orders for payment of money and annexes 54 pages of "grounds of appeal". The grounds are presented in a discursive way, interspersing excerpts from transcript, directions and adding submissions. 4. Rather than paraphrasing the appellant's grounds of appeal we have set out four paragraphs in relation to each ground as stated by the appellant: 5. Ground One : The tribunal erred in law when it amended the claim of the respondent that is at B1 to B47 of the folder with CLARIFICATIONS TO DOCUMENTS SUBMITTED that is at D1 to D23 of the folder without giving notice to the appellant as required by section 53(2)b of the Civil and Administrative Tribunal Act 2013 and in breach of the orders of the tribunal made in these proceedings on 2 February 2015 and without giving any reason to the appellant in doing so. 1. Ground Two: The tribunal erred in law when it prefer for the demeanour of the Respondents lay and expert witnesses over the Appellants lay and expert witnesses and failed to exercise the jurisdiction conferred on the Tribunal and section 38 (2) of the Civil and Administrative Tribunal Act 2013 to investigate the complaint made by the appellant via his evidence filed in proceedings MV 14/44852 on 23/02/2015 at paragraphs 3, 4, 5 and 6 of the Appellants evidence that is at C3 of the folder. 1. Ground Three The senior member erred in law at paragraph 40(3) of his reasons for decision when he misled himself with the evidence of the Appellant that is at page C3, paragraph 4 of the folder, "he denied having carried out any repairs to the truck and that invoices provided by the applicant were false and misleading". 1. Ground Four: The senior member erred in law by admitting the expert report of Mr Phillip J Scott the Respondents expert witness into evidence in these proceedings for the following reasons: (A) the expert report of Mr Scott is misleading and bias and was only good if the appellant did not find the old engine block and associated parts 1. As was pointed out in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] it is "necessary for the notice of appeal to identify precisely the particular questions of law." The Notice of Appeal does not clearly distinguish between asserted questions of law and other grounds and presents those matters in a confusing and repetitive way. We note however, the decision of Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 where the Appeal Panel found: 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. 1. We also refer to the potential questions of law set out in the Prendergast decision at [12]. 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 had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into a relevant 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 make it. 1. Amongst the four grounds of appeal as set out above, we regard the appellant (who was unrepresented) as raising one question of law, namely: 1. Ground one alleges that the Tribunal should not have admitted documents into evidence and that the admission of evidence received on 2 March 2015 constituted a procedural unfairness. 1. In respect of that ground the appellant has a right of appeal: s 80(2)(b) of the Act. 2. The subsequent grounds, (2), (3), and (4) appear to be in terms that the Member misdirected himself and applied the wrong weight to the evidence. This is not a question of law and requires the leave of the Appeal Panel. 3. Since the decision appealed against was a decision of the Consumer and Commercial Division, the granting of leave to appeal is governed by cl 12 of Sch 4 to the Act. Under cl 12(1), the ability of the Appeal Panel to grant leave is limited to cases in which the Appeal Panel is satisfied that 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). Submissions 1. The applicant filed an amended Notice of Appeal and significantly amended submissions in a bundle served on 24 February 2016. The bundle contained the evidence tendered before the Tribunal and transcript of proceedings below. During the hearing we endeavoured to excise the relevant supporting submissions supporting each ground of appeal and, where necessary, the submissions are repeated in these reasons by quoting directly from the relevant material. 2. The respondent's reply documents were filed after the appeal hearing. The amended Notice of Appeal was received over objection by the respondent on the proviso that he be permitted to file written submissions in response after the hearing. The submissions from the respondent were received on 21 March 2016 and have been considered by the Appeal Panel. Ground one – the Tribunal erred at law when it admitted the invoice for $35,302 and accepted it as proof of the respondent's loss 1. The appellant submits that the Tribunal should not have admitted the Mal Hooley Truck Repair invoice or should not have given it any weight. The appellant states that "there is incontrovertible evidence before the appeal panel that the invoice for $35,302.20 was filed in these proceedings by the respondent with an ulterior motive and that the respondent and Mr Scott mislead the Tribunal on various occasions to justify this invoice" (see p 29 of the appellant's submissions.) The appellant submits that the Tribunal should have recognised that the separate invoices from Mal Hooley Truck Repairs were inconsistent and falsified and Mr Scott, in collusion with the respondent, misled the Tribunal. 2. The appellant further submits that the Tribunal member fell into error when he admitted the documents because of confusing Directions issued on 2 February 2015. For ease of reference we shall refer to the applicant below as Mr Rodriguez and the respondent below (now appellant) as Mr Singh. Mr Singh complains that the Tribunal received documents headed "CLARIFICATION TO DOCUMENTS SUBMITTED" from Mr Rodriguez and that he was not allowed the opportunity to respond to them. 3. The documents were filed by Mr Rodriguez on 2 March 2015 and Mr Singh obtained a copy before the hearing. The documents bear the stamp of the Tribunal and were marked "exhibit B" and were tendered as an exhibit at the adjourned hearing on 27 July 2015. 4. In order to understand the appellant's ground number one it is necessary to revisit the directions made by the Tribunal on 2 February 2015. On that day the matter was adjourned because of delay by Mr Singh, and his inability to comply with directions made earlier in the proceedings. He had failed to put on evidence in response to the invoice from Mal Hooley Truck Repairs. Mr Singh was ordered to file his evidence by 23 February 2015 and the applicant Mr Rodriguez was directed to file evidence on 2 March 2015, effectively in reply. Although the words, "in reply", do not appear on the written Directions, procedurally what occurred was not unusual or unfair: the applicant was able to file and serve the last documents in time before the hearing. The CLARIFICATION TO DOCUMENTS SUBMITTED filed on 2 March 2015 contained invoices by Mal Hooley Truck Repairs previously filed and a further statement from Mr Rodriguez, "clarifying" his position, not materially different from his first statement. Mr Singh responded to these documents at length during the hearing by cross examining the expert and the applicant. 5. As best as we can ascertain, although not submitted by the appellant in these terms, the appellant complains that the documents filed on 2 March 2015 contained inconsistencies which should have been apparent to the Tribunal and that the Tribunal should have concluded that Mal Hooley Truck Repairs did not perform the work as itemised in the invoice. 6. It is submitted that had the Tribunal properly analysed the invoices, the Tribunal should have recognised that Mr Scott was not independent and had colluded with the respondent and that the invoices were fabricated and that a second hand engine was not fitted into the truck and that the losses and damages as claimed by Mr Rodriguez had not been incurred. The appellant makes particular reference to the transcript at pages 25 and 28 of the submissions. It is apparent from the transcript that during cross examination Mr Scott maintained at all times that he inspected the correct engine, which was still fitted to the truck prior to it being removed by Mal Hooley Truck Repairs. The appellant did not present any evidence to the Tribunal at first instance or to the Appeal Panel to support its allegation of falsified invoices. As such the only evidence available to support an allegation of collusion between Mr Scott and the respondent was the cross examination of Mr Scott and Mr Rodriguez. The allegation of fraud was not made out by the cross examination. As already noted, there was no procedural unfairness in admitting the evidence. The finding by the Tribunal that the applicant expended $27,025.87 was open to the Tribunal based on the invoice of Mal Hooley Truck Repairs. This ground must therefore fail. Ground two - the Tribunal erred in law when it preferred the demeanour of the respondents' witnesses 1. The Tribunal erred when it preferred the evidence of Mr Scott to that of Mr Elson. We consider that the following findings sufficiently support the Tribunals conclusion that Mr Scott's expert opinion should be preferred over Mr Elson's: 1. The transcript at pages 27 and 28 reveals that Mr Scott's maintained at all times that he inspected the original engine no. 23188459 (and not some other engine as alleged) and his credibility was not impugned by the appellant; 2. The Tribunal satisfied itself that the Scott report annexed the expert code of conduct whereby Mr Scott declared his independence as a witness; 3. The Tribunal, in reaching its conclusions adopted a number of facts agreed between the experts which were not controversial; 4. The Tribunal concluded that the Elson report was not persuasive as it did not address directly the issue of whether the work carried out on the engine by the appellant was carried out with due care and skill, whereas the report of Mr Scott did address the central issue. 1. In view of these findings the Appeal Panel is of the view that the Tribunal properly considered the expert evidence tendered by both parties and cannot arrive at a finding that leave to appeal in respect of this ground should be granted. Ground Three – the Tribunal erred in reaching a finding that no repairs were carried out by the appellant 1. The appellant further submitted that the Tribunal misdirected itself, when at paragraph 40(3) of the reasons it found that the appellant "had denied having carried out any repairs to the truck" when the appellant always maintained he had carried out repairs. We believe that the member did not misdirect himself, but may have expressed himself ambiguously. The relevant findings are contained at paragraphs 49 and 51 respectively: the Tribunal found that the appellant did perform work on the engine, namely "that the [appellant] replaced No.3 piston and liner assembly and refitted the cylinder head and associated components". The Tribunal further found at [51] that the appellant performed an "out of chassis rebuild", which consisted of the replacement of all six cylinder liners and pistons and big end bearings, but that the repair had failed see [52]. It is clear from the reasons for decision that the Member did find that the appellant carried out two repairs. Insofar the Member misquoted the appellant's evidence in paragraph [40(3)] it made no material difference to the relevant findings reached by the Tribunal. This ground must also fail. Ground 4 – the report of Mr Scott was biased and unethical 1. We understood that this ground was withdrawn as it duplicated ground one above. However, it appears to address slightly different passages of the reasons and for abundant caution we have addressed this ground of appeal also. At paragraph 4.20 of its submissions the appellant alleges that the expert, Mr Scott, misled the Tribunal by stating that "liners and pistons were not changed" thereby creating a "deliberate dishonesty". Insofar this ground alleges that the expert was biased or acted unethically, the ground has not been made out for the reasons we set out at paragraphs [38] and [41] above. Insofar it is critical of the expert's opinion that the appellant never undertook a "chassis rebuild", this was not an allegation ever accepted by the Tribunal as the Tribunal found in paragraph [51] that the chassis rebuild did occur. This ground has not been established. 2. For the reasons set out above, we have concluded that the grounds of appeal insofar they raise questions of law must fail and that leave to appeal should not be granted. Decision 1. For these reasons the Appeal Panel makes the following order: 1. 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: 16 June 2016