Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wise v Hottes Investments Australia Pty Ltd t/as Country Autos [2016] NSWCATAP 176 Hearing dates: 11 May 2016 Date of orders: 02 August 2016 Decision date: 02 August 2016 Jurisdiction: Appeal Panel Before: P Callaghan SC (Principal Member) K Rosser (Senior Member) Decision: (1) The application for extension of time is dismissed. (2) The application for leave to appeal is dismissed. (3) The appeal is dismissed. Catchwords: APPEAL and APPLICATION FOR LEAVE TO APPEAL – Civil and Administrative Tribunal – no significant new evidence not reasonably available at time of proceedings under appeal – dismissed APPLICATION for extension of time for lodgement of Notice of Appeal – delay significant and insufficiently explained - dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Robert Wise Respondent: Hottes Investments Australia Pty Ltd t/as Country Autos Representation: Appellant: Ms Julia Anderson of Legal Aid New South Wales, Tamworth (by telephone) Respondent: In person, through Messrs Nathan Wise and Desmond Wise (by telephone) File Number(s): AP 16/07022 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 3 December 2015 Before: D Charles File Number(s): MV 15/48933 REASONS FOR DECISION Background 1. In or about July 2013 the Appellant, Robert John Wise, of Tamworth, purchased from the Respondent, Hottes Investments Australia Pty Ltd t/as Country Autos, of Tamworth, a new Great Wall V200 single cab manual four wheel drive motor vehicle ("the vehicle") for a price of about $25,000. By application lodged in the Consumer and Commercial Division ("CCD") of this Tribunal on 24 August 2015, the Appellant alleged trouble with the vehicle in relation to the brakes (the ABS), which he said were dangerous, the steering and the seat belts. At the Tribunal hearing at Tamworth on 3 December 2015, the matter was dealt with (properly in our view) as a claim by the Appellant for a new vehicle on the basis that the matters complained of by the Appellant constituted a major failure within the meaning of the Australian Consumer Law ("ACL"). The Tribunal determined the proceedings by dismissing the Appellant's claim for a replacement vehicle or any other relief in these terms: The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. Decision under Appeal 1. The decision under appeal was the subject of a Notice of Order issued by the Tribunal on 3 December 2015. The substantive parts of the reasons for that decision were as follows: The Tribunal has reached this decision following due and careful consideration of the evidence presented which (apart from the written material) included the sworn oral evidence and submissions of the parties. In respect of the parties' sworn oral evidence, each party was allowed to ask the other party questions by way of cross examination as to any disputed matters of fact as well as answer questions put to each party by the Tribunal. The applicant submits: there are issues with the steering mechanism (grinding noise), the gearbox and the brakes of the vehicle; these issues have been apparent in the vehicle since shortly after its delivery; these issues constitute a breach of the 'consumer guarantees' of acceptable quality and fitness for purpose (see sections 54 and 55 of the ACL); by reason of the said breaches of the consumer guarantees there has been a 'major failure' within section 260 of the ACL which entitles the applicant to orders that the vehicle be replaced. The respondent relies on the correspondence from King's Brake Service (to the effect that there are no braking issues with the vehicle), and correspondence from Chris Rapley of Rapids Ute World and Daniel Lang (both of which support the proposition that the 'groaning noise' in the steering mechanism does not affect the driveability or safe operation of the vehicle). As regards the gearbox, there was evidence from both parties that the vehicle has recently had a replacement slave cylinder fitted to address this problem. The respondent says that the manufacturer's warranty applies only in circumstances where the applicant can demonstrate that he has had the vehicle serviced over the past 2 years in accordance with the Great Wall service procedures. Although no such evidence had been supplied the respondent says as a gesture of goodwill it will cover the cost to the applicant for the fitting of the replacement of the slave cylinder for the vehicle's gearbox. The Tribunal is not satisfied that the applicant has made out a case for the orders now sought. The Tribunal makes the following findings: all issues in respect of the brakes of the vehicle have been addressed by the respondent; any issues regarding the steering mechanism (in particular any grinding noise) do not affect the driveability or safe operation of the vehicle; any issues as regards non-compliance with the consumer guarantees of acceptable quality and fitness for purpose have been addressed by the respondent; there is no evidence (e.g. an independent automotive engineer's report) to substantiate an allegation that the vehicle has a major manufacturing defect (said to constitute a 'failure'), such as would support a finding that the vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of such defect; there was no 'major failure' of the vehicle within section 260 of the ACL, or at all. Given the above findings of fact and law, the applicant's case for a replacement vehicle or any other relief must be dismissed. Appeal 1. A Notice of Appeal was lodged on behalf of the Appellant with the Tribunal in Tamworth on 10 February 2016. The Notice specified the grounds of appeal thus: The decision of the Tribunal was not fair and equitable. Significant new evidence has arisen that was not available at the time of the original hearing. I attach a written statement/invoice from K-Mart tyre and autos which outlines the problems with the ABS brakes. I also attach a letter from Haydens Mechanical Repairs that outlines all the services were done in accordance with Great Wall Guidelines. I also attach a copy of my service book. I further attach information from productreview.com.au which outlines that there are numerous problems with the Great Wall V series ute, the ABS brakes being one of the many problems. The Notice of Appeal stated that instead of the order appealed from the Appeal Panel should order "that the respondent should provide the applicant with a refund for the purchase price of the vehicle." 1. The Notice of Appeal also sought leave to appeal. It particularised that the decision under appeal was not fair and equitable, giving in that respect the following details: "The decision was not fair and equitable because I did not understand the Tribunal process. I was not given the opportunity to present evidence in relation to the service history of the vehicle." It also particularised that significant new evidence was now available that was not reasonably available at the time of the hearing, referring to the same matters as had been included in the grounds of appeal. The Notice stated that this evidence was not available at the time of the hearing "because I could not find a mechanic to put their opinion in writing". No allegation was made that the decision was against the weight of evidence. 1. The Notice of Appeal also sought an extension of time for lodging the Notice of Appeal, specifying this reason: I was not aware of my appeal rights and it has taken some time to get further evidence in support of my application. Legislative Provisions Extension of Time for Appeal 1. The Civil and Administrative Rules 2014 relevantly provide in r 25 that an internal appeal such as this must be lodged within 28 days from the date the appellant was notified of the decision. Section 41 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") Act permits the Tribunal to extend that time. 2. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 an Appeal Panel at [22] reviewed a number of cases and said (among other things): Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospect of success, that is whether the applicant has a fairly arguable case; and 4. The extent of any prejudice by the respondent (to the appeal). Appeal and Leave to Appeal 1. Section 80(2) of the NCAT Act relevantly provides that an appeal may be made to an Appeal Panel against a decision such as the appealed decision as of right on any question of law, or with leave of the Appeal Panel on any other grounds. 2. 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." Here, the Notice of Appeal does not clearly distinguish in the formulation of the matters relied on between asserted questions of law and other grounds and presents those matters in a somewhat discursive and repetitive style. We appreciate, however, the guidance given in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: 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 add the helpful, but not exhaustive, list of potential questions of law given in the Prendergast decision at [13]. 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 account a relevant (i.e. 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 make it. 1. Clause 12(1) of Schedule 4 of the NCAT Act provides that an application for leave to appeal from a decision of the Consumer and Commercial Division of this Tribunal may be granted: …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 relation to that clause, in Collins v Urban [2014] NSWCATAP 17 at [79] an Appeal Panel of this Tribunal, by way of summary of relevant general principles and after a review of a number of cases, said that: Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstance referred to in cl 12(1)(a), (b) or (c) where there is a "significant possibility" or "a chance which was fairly open" that a different or more favourable result would have been achieved for the appellant had the circumstance referred to in para (a) or (b) not occurred or if the fresh evidence at para (c) had been before the Tribunal as first instance. And similarly at [84] the Appeal Panel said that: (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 … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters or administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. The phrase "not reasonably available" in cl 12(1) of Schedule 4 of the NCAT Act involves a non-availability which has to be determined objectively (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23], [24] and [27]). Consideration 1. At the hearing of the appeal, Ms Anderson on behalf of the Appellant acknowledged that there was no question of law involved. She also indicated that the contention in the Notice of Appeal that the decision under appeal was not fair and equitable was not pressed and in particular there was no reliance placed by the Appellant on any part of the audio-tape of the CCD hearing (a copy of which had been submitted on behalf of the Appellant but which was not transcribed or played at the appeal hearing). The issues left for determination are whether time to appeal the Tribunal's decision should be extended; if so, whether the Appeal Panel is satisfied that the Appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with); and if so whether the Appeal Panel should grant leave to appeal. 2. An assessment of the new evidence suggested by the Appellant is central not only to the application for leave to appeal but also to the application for an extension of the time for lodging the appeal. 3. At the outset, we outline evidence proffered on behalf of the Appellant at the appeal hearing: 1. A short report dated 2 February 2016 by Mr Eric Day, the store manager of Kmart Tyre & Auto Service of Tamworth. This report recounts an inspection of the vehicle, with road testing, for a period of 1 hour. It concludes: "It is my opinion that the ABS system programming and slip rate require assessment and adjustment to resolve the customer's complaint, as I also agree the vehicle is not safe to drive on roads with a slippery surface. 1. A report by Duffy's Automotive Tamworth of 18 February 2016 concerning a "62 Point Safety Check and Report" in respect of the vehicle reported: "Road Test as per customer complaint about dangerous brakes pulling severely when braking on dirt road. Could not replicate brake issue." It listed the following items apparently as requiring attention: * Needs new clutch pedal pad * Number plate light inoperative * Noise in clutch, possible bearing * Due for 50,000 km service * Noise in power steering * Suspension noise in right hand front, possible ball joint or bush. 1. A report of 18 February 2016 from Auto Care Gunnedah by Mr Mal Scott, Workshop Supervisor, concluding that he found the vehicle to be unsafe in braking and suspension. He found the right hand ball joint to be badly worn and suggested repair as soon as possible, with the left hand ball joint being not as bad but requiring replacement. As to the braking, the report stated that the customer had requested to check suspension and braking systems as he felt that he had problems; there was a testing on a platonic machine and found to be satisfactory; a test drive vehicle indicated that on a hard surface the brakes worked satisfactorily but on a loose surface the vehicle jumped around, trying to pull to the left and was unsafe. 2. A report from CAR Auto Repair of Wallabadah dated 11 March 2016, by Nigel Clark included the following: 3. On inspection of the brake system I have found that there is a fault in the ABS brake system, especially on dirt roads (could not test in wet conditions but it is of my opinion this will be the same)…it is my opinion Mr Wise's vehicle is unsafe to drive until the fault is repaired. I was also asked to inspect panel alignment of the left hand door. If this has been rectified by the local dealer already this is a very poor repair of the door and still is not in its correct position. 4. A report by Tamworth Automotive EFI Services of 14 March 2016 that: 5. Brakes were found to be satisfactory at 40 kph on sealed road. However when applied to slippery or dirt surface brakes were found to be very unsafe and reluctant to stop. ABS unit or programming appears to be causing lack of braking ability. This vehicle should not be driven on dirt or slippery surfaces as it is unsafe… 6. A letter dated 14 April 2016 from Hayden's Mechanical Repairs Pty Ltd of Tamworth stating that the vehicle had been serviced by them "in accordance with Great Wall standards" with the first service having been on 10 January 2014. 7. A statutory declaration by Ms Amanda Denise Wilson dated 19 February 2016. She says that the Appellant has been doing casual work on Ms Wise's grazing property for the past four years. She recounts a history of problems he has had with the vehicle and concludes: "The vehicle, in my opinion, is a 'lemon' and needs to be replaced before Bob kills himself or some other innocent persons on the road." 1. A statutory declaration by the Appellant dated 19 February 2016 confirming his position in relation to the servicing of the vehicle, namely, that the vehicle had been serviced according to Great Wall and Standards and concluding: "I have been driving for 58 years, including heavy vehicles, coal trucks, semitrailers and never have I heard any vehicle make noises like this Great Wall Ute." 1. A collection of entries down-loaded from websites concerning Great Wall vehicles. None of these was referred to at the appeal hearing and we do not understand that any reliance is placed on behalf of the Appellant on this material. 1. At the appeal hearing the Respondent referred to material including the following: 1. Report from King's Brake Service of Tamworth dated 15 September 2015: "At time of inspection of vehicle the braking system tested with no faults. During a test drive there was a noise heard but no apparent origin at the time of inspection." This was preceded by a memorandum signed by the Appellant and dated 11 September 2015 stating: "I, Robert Wise, confirm that once King's Brakes have inspected my vehicle and have formed an opinion that the brakes on my Great Wall V 200 single cab registration number BOB614 were not faulty and are in proper working order, I will not take any further action against Country Autos with regard to this matter." We were informed that this material had been placed before the CCD hearing. 1. A report from Mr Chris Rapley of Rapid Automotive Mobile Repairs of Tamworth, which is undated, concerned the power steering in the vehicle, noting that there was a noise in the system which reports it was "in no way a dangerous problem or a problem that will cause failure to the steering" and "it is simply caused by air in the system's oil lines". This report also was, we were told at the appeal hearing, placed before the CCD hearing. 2. An undated report by Ian Barnes of Barnco Automotive Repairs of Tamworth stating that: "I have replaced all rear brake components, including rear wheel cylinders, new brake shoes, new rear drums, new handbrake cables, all parts being genuine and fitted as per vehicle specification. Brakes have since been re-checked and found to be in complete working order with no faults found." At the appeal hearing the Respondent's representatives informed us that after the CCD hearing, this work had been carried out by arrangement between the parties, apparently at no cost to the Appellant. 1. A letter dated 24 March 2016 written by Mr Clark of CAR Auto Repairs of Wallabadah to the Respondents with reference to his report of 11 March 2016 to the Appellant and following a telephone discussion between him and Mr Desmond Wise of the Respondent stating among other things: "…but I will stand by my inspection of this vehicle that it has a brake fault and that this vehicle should not be driven it is unsafe on loose surface roads. I'm not sure how this fault has developed in this vehicle if it is an owner damaged fault or a manufacture fault and at no time could Mr Wise tell me exactly when this fault started. I will not profess to be a brake specialist but with 30 years of experience in the automotive trade and test driving this vehicle there is a fault there but I do not know how to repair it, I do also acknowledge the fact after you explained to me what you guys have done that almost all avenues of repair have been exhausted." 1. The principal suggestion that, in our opinion, arises from the material which the Appellant has produced is that there may be a continuing problem with the ABS (antilocking brake system) aspect of the brakes on the vehicle. The precise history, nature and extent of that suggested problem are not clear. The suggestion has to be assessed in this appeal in respect of the issue whether it is based on material which constitutes "significant new evidence (which) has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being deal with)." It has to be so assessed in a context which involves in particular considerations that: 1. Most of the material was obtained after the Notice of Appeal, which was lodged two months after the decision under appeal; 2. In the Notice of Appeal the Appellant says that this material was not available at the time of the hearing "because I could not find a mechanic to put their opinion in writing". Four of the reports dealing with mechanical matters are from people in Tamworth and two are from people in neighbouring towns. There is no indication that any of these people were approached by the appellant prior to the Tribunal hearing in Tamworth on 3 December 2015; 3. All of the material dealing with mechanical matters has been presented somewhat informally and none of it accords with NCAT Procedural Direction 3 concerning Expert Witnesses; 4. There is no explicit indication of the availability of any of the authors of that material to give evidence sustaining the matters asserted there; 5. The CCD hearing was preceded, and was succeeded, by attention to the brakes on the vehicle, apparently arranged between the parties and at no cost to the Appellant: by King's Brake Service of Tamworth in September 2015 and by Barnco Automotive Repairs of Tamworth, it seems shortly after the hearing; and 6. The vehicle has been driven for an excess of 50,000 kilometres. Conclusions 1. Appraising the material in this manner we conclude that we are not appropriately persuaded that: 1. The material constitutes significant new evidence; 2. The material was not reasonably available at the time of the decision under appeal; 3. The appellant may have suffered a substantial miscarriage of justice; and 4. This is an appropriate case for leave to appeal to be granted. 1. To the extent that the Notice of Appeal may have been said to seek an appeal as such, it was, as we have noted above, not pressed. That is, in our opinion, appropriate. 2. The application for an extension of time for lodging the Notice of Appeal should also be dismissed. The delay of two months was significant. The Appellant's explanation in the Notice of Appeal as to why it was not lodged within time was that "I was not aware of my appeal rights and it has taken me some time to get further evidence in support of my application". We find that explanation insufficient, in particular as it appears to us to involve the Appellant having been searching for some weeks after instituting the appeal for evidence which he could reasonably have sought for the hearing on 3 December 2015. 3. Accordingly, the Appeal Panel orders that: 1. The application for extension of time is dismissed. 2. The application for leave to appeal is dismissed. 3. 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: 02 August 2016