Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Hearing dates: 21 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President D Robertson, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: CONSUMER CLAIM – appeal from decision dismissing application under Australian Consumer Law – whether decision not fair and equitable or against the weight of evidence – whether new evidence should be admitted Legislation Cited: Australian Consumer Law, s 60 Civil and Administrative Tribunal Act 2013 (NSW) s 80(2)(b), Sch 4, cl 12 Category: Principal judgment Parties: Gregory Ryan (Appellant) BKB Motor Vehicle Repairs Pty Ltd (Respondent) Representation: Appellant (self-represented) C Feng (Respondent) File Number(s): 16/38089 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 July 2016 Before: G Meadows, Senior Member File Number(s): MV 16/22329

The Decision under appeal

REASONs FOR DECISION 1. Mr Ryan has appealed from a decision of the Consumer and Commercial Division of the Tribunal dismissing his application under the Australian Consumer Law in relation to the repair of his vehicle. Mr Ryan has the right to appeal on a "question of law" but he has not identified such a question: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(2)(b). He needs the Appeal Panel's permission to appeal on grounds which are not questions of law. 2. Mr Ryan requested permission to appeal on three grounds. The first two grounds were that the decision was "not fair and equitable" and was "against the weight of evidence". We may give permission to appeal on those grounds if we are satisfied that Mr Ryan may have suffered a substantial miscarriage of justice for either of those reasons. The third ground of appeal was that there is "significant new evidence" which was "not reasonably available" when the matter was heard by the Tribunal. Again, we may give permission to appeal on that ground if we are satisfied that Mr Ryan may have suffered a substantial miscarriage of justice because significant new evidence has arisen which was not reasonably available at the time the matter was heard: NCAT Act, Sch 4, cl 12. 3. We understand Mr Ryan's case to be that BKB Motor Vehicle Repairs Pty Ltd did not comply with the guarantee that its services would "be rendered with due care and skill": Australian Consumer Law, s 60. The Tribunal described Mr Ryan's case as being that the :repairs, including the machining of the cylinder head, raised the compression … of the valve chamber, which in turn caused damage to the piston rings and oil rings, allowed oil into the cylinders where it burns, releasing billowing blue smoke". 4. Apart from internet searches, Mr Ryan's own views and the opinion of a person who had not inspected the vehicle, the only evidence which Mr Ryan provided to the Tribunal at the initial hearing to support his theory was an unsigned invoice from Bourke Road Automotive charging Mr Ryan $440 for diagnosing an engine fault. The report said, in part: On inspection of vehicle customer explained the situation and what had happened with the vehicle and procedure it was repaired in. It was found after testing vehicle for excess smoke that the vehicle has damaged compression rings and oil rings. It's a common fact in the mechanical world that these engines had oil burning issues from new so any adjustment of compression which is pressure in the cylinder would bring on these symptoms. By machining the cylinder head as stated on invoice you lower the height from piston top to combustion chamber bringing the pressure up dramatically. The customer was not made aware or warned of any chance of this happening and now his vehicle is not roadworthy due to excess oil smoke and failed rego inspection … In 19 years of being an automotive mechanic this situation would have been avoided if all facts were stated to customer. 1. The Tribunal found that "there was a lack of objective, independent expert evidence to support the applicant's case". The Tribunal added that the report from Bourke Road Automotive "is not in the correct format, but more importantly does not reflect a proper investigation or inspection of the engine"/ The Tribunal also made the comment that the report was unsigned and there was no reference to the identity of the author. 2. Mr Ryan's main point on appeal was that he paid for BKB Motor Vehicle Repairs to fix his vehicle and when he got it back, it was not fixed. That is sufficient, he says, for the repairers to be liable. Mr Ryan has not stated the law correctly. The law is that he must prove, with relevant and reliable evidence, that BKB Motor Vehicle Repairs did not provide their services with "due care and skill". The Tribunal was not satisfied, on the basis of the evidence that Mr Ryan provided, that he had done so. We are not persuaded by anything Mr Ryan said that the Tribunal's decision was not fair and equitable or that it was against the weight of evidence. It follows that we are not satisfied that Mr Ryan has suffered a substantial miscarriage of justice for either of those reasons. We refuse permission for him to appeal on these grounds. 3. Mr Ryan also asked the Appeal Panel to consider new evidence. That evidence was: 1. an email dated 28 September 2016 from Mr Fulko, Automotive Inspector from the Department of Finance, Services and Innovation; 2. four quotes for the supply or supply and installation of a reconditioned engine; 3. an email from Mr Valois, a "repair class motor mechanic", dated 2 November 2016; and 4. two letters from Mazda Australia Pty Limited both dated 31 October 2016. 1. There was some evidence put before us as to the difficulties Mr Ryan had in obtaining a response from Mr Fulko but we are not satisfied that any of this evidence was "not reasonably available" when the Tribunal heard the matter. The evidence was available, but Mr Ryan did not do everything he needed to do to obtain it in time. Directions were made for Mr Ryan to file his evidence by 8 June 2016 but he did not comply. He emailed saying he was away on holidays and would file the material on 28 June 2016. He provided the evidence on 8 July 2016, 11 days before the hearing. If Mr Ryan needed more time to obtain evidence, he could have applied to the Tribunal for an extension. It appears that Mr Ryan mistakenly thought that the evidence from Bourke Road Automotive would be sufficient to prove his case. That conclusion is supported by the fact that Mr Ryan sent an email to the Tribunal explaining that he would provide his evidence when he came back from holidays, adding that, "[T]he Tribunal knows what's going on … as does the … defendant … so what's the problem … why all the stress?" 2. Nor are we satisfied that the further evidence is 'significant'. None of the people expressing an opinion have inspected the vehicle. In fact, Mr Fulko states that, "[T]he only sure way to confirm a piston ring failure would be to remove the pistons and rings for inspection". We cannot conclude that, if any of the further evidence had been available at the hearing, the Tribunal might have reached a different result. 3. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.