Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tallevine Pty Ltd t/as Pennant Hills Isuzu v Levoune [2018] NSWCATAP 53 Hearing dates: 15 February 2018 Date of orders: 27 February 2018 Decision date: 27 February 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: (1) Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: LEAVE TO APPEAL - no issue of principle - no substantial miscarriage of justice Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act, 2013 Cases Cited: Al Daouk v Mr Pine t/a Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Khan v Kang [2014] NSWCATAP 48 Texts Cited: Nil Category: Principal judgment Parties: Tallevine Pty Ltd t/as Pennant Hills Isuzu (Appellant) Scott Levoune (Respondent) Representation: I Creak, Director (Appellant) In person (Respondent) File Number(s): AP 17/51612 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 31 October 2017 Before: P Smith, General Member File Number(s): MV 17/25613 reasons for decision Introduction 1. On 31 October 2017 the Tribunal made an award of $1500.00 in favour of the respondent, being damages for defects in a new motor vehicle which the respondent had purchased from the appellant on 1 April 2017. 2. The respondent had filed application MV 17/25613 on 6 June 2017. That application had sought various compensation in excess of $14,000 in respect of various defects said to exist in the vehicle at the time of purchase. 3. The proceedings had been listed for hearing by the Tribunal on 31 October 2017. Prior to this time, the Tribunal had made directions for the parties to file and serve evidence in support of their respective positions. 4. The Tribunal provided written reasons which were attached to the orders made 31 October 2017. The Tribunal accepted evidence provided by the respondent that some of the defects, about which complaint was made, existed in the vehicle at the time of purchase. In doing so, the Tribunal was provided with and reviewed photographs taken by the respondent of the alleged defects. The Tribunal noted that the respondent had returned the motor vehicle to the appellant which had "re-detailed and polished the vehicle". Despite this work the Tribunal accepted that there was "minor damage to the non-genuine accessories and the finishes of the vehicle". Consequently, the Tribunal determined an award should be made in favour of the respondent which included "replacement tray assembly parts, nudge bar and ladder rack, grill and the cost of further detailing of exterior and repairs to the trim". 5. In making this award, the Tribunal noted that the relationship between the parties had broken down. Consequently, while declining to make a work order, the Tribunal only awarded the respondent the "wholesale costs" of the replacement parts. Notice of Appeal and submissions 1. The appellant filed an amended Notice of Appeal on 4 December 2017. The Notice of Appeal was dated 1 December 2017 and recorded that notice of the original decision was received by the appellant on 3 November 2017. It would appear that the appellant lodged the original appeal, together with a stay application on 30 November 2017. 2. Consequently, the appeal was filed in time being 28 days after the date the appellant was notified of the decision. The appellant sought leave to appeal on questions other than questions of law. 3. The parties filed documents in support of their appeal and written submissions. This material also included new evidence for which leave was required. These documents were identified by the Appeal Panel at the commencement of the hearing, the Appeal Panel explaining to parties the circumstances in which leave to appeal might be granted and the circumstances in which leave might be given to adduce fresh evidence. 4. The appellant wished to rely on the sound recording of the proceedings at first instance. However, the sound recording was not available. Apparently, some malfunction meant the sound recording did not in fact exist. The Appeal Panel had noted this fact in refusing an earlier request for an extension of time and had required the parties to provide a statutory declaration setting out what happened at the original hearing, if what happened at the original hearing was being relied upon. 5. At the hearing of the appeal, the appellant was represented by its director, Mr Creak. Mr Creak had appeared for the appellant at the original hearing of the proceedings at first instance. The respondent appeared in person both at the original hearing and at the hearing of the appeal. 6. The appellant's grounds of appeal and submissions can be summarised as follows. 7. First, the appellant said that the Tribunal Member was biased and should have disqualified himself. The appellant appeared to assert actual bias and apprehended bias. 8. The appellant asserted that he had asked the Tribunal Member at the commencement of the hearing whether he had been involved in hearing an earlier dispute involving the appellant in 2014. The appellant said that the Tribunal Member responded that he had no recollection of the earlier matter or of Mr Creak. The respondent said such a discussion did not take place. 9. In any event, the Appeal Panel asked Mr Creak whether any application had been made to the Tribunal that the Member disqualify himself. Mr Creak said no application had been made. 10. Secondly, the appellant contended that it had been denied procedural fairness by the manner in which the hearing had been conducted. 11. When asked to explain to the Appeal Panel what had occurred at the original hearing (the sound recording not being available and the appellant not providing a statutory declaration setting out what had occurred), Mr Creak said that the Tribunal Member had commenced the hearing and immediately started asking him questions. He said that the Tribunal Member had been rude and abrupt. The respondent said the Tribunal Member was not rude and abrupt. 12. When asked by the Appeal Panel whether the parties had filed and served material prior to the commencement of the hearing, Mr Creak said yes. It was also apparent from discussions between the Appeal Panel and Mr Creak that the hearing had lasted for approximately 2 hours, during which Mr Creak spoke to the Tribunal Member for approximately 1 ½ hours, a matter confirmed by the respondent. It also appeared to the Appeal Panel from what the parties said that the Tribunal Member had read the material provided by each of the parties prior to the hearing, the conversations with Mr Creak examining the evidence which had been provided. 13. In making the submissions concerning bias and procedural fairness, the appellant also sought to rely upon evidence, apparently concerning an unrelated dispute in 2014, the apparent prosecution of the appellant by the Department of Fair Trading in Local Court of New South Wales and the and subsequent successful appeal by the appellant to the District Court of New South Wales concerning a conviction under the motor dealers legislation relating to the appellant's business operations. The appellant did not assert that the Tribunal Member had been involved in the Local Court and District Court proceedings. Rather, the appellant asserted that the Tribunal Member had been involved in Tribunal proceedings concerning the transaction to which the prosecution related. The appellant acknowledge that this material had not been provided to the Tribunal in the proceedings at first instance. 14. Thirdly, the appellant asserted that the decision made by the Tribunal was not fair and equitable or was against the weight of the evidence. 15. At the hearing, the appellant tendered coloured photographs, which had not been provided prior to the hearing, contrary to directions made by the Appeal Panel. Those photographs were the coloured photographs originally relied upon by the respondent at the hearing at first instance. The respondent had originally contended that the photographs depicted the various defects about which the respondent had complained. The photographs were admitted by consent and marked Exhibit AP1 in the appeal. 16. In relation to the photographs, Mr Creak identified 7 photographs in the bundle, which were numbered by the Appeal Panel 1-7. The Appeal Panel was asked to view the photographs and Mr Creak made submissions that the photographs did not show any markings or defects on them of the type which the Tribunal had found to exist. However, the Appeal Panel did note the position of some markings on the photographs contrary to the assertions made by Mr Creak. 17. The appellant also submitted that the Tribunal should not have had regard to a quotation and report provided by the respondent because these were not signed. The appellant said the Tribunal was wrong to reject his own evidence concerning the defects. 18. We note in passing that the respondent accepted that the quotation and report were unsigned. The respondent sought on appeal to tender signed copies of these documents. Further, the respondent said that the evidence in any event establish the defects about which complaint was made. 19. In relation to the evidence before the Tribunal, the appellant also submitted that it was undeniable the car had been returned in May by the appellant and that some repairs had been carried out. The appellant submitted that there was no evidence of any problems with the vehicle beyond this date. Consequently, the Tribunal was in error in concluding that the vehicle still had defects and no award for compensation should have been made. 20. The appellant also sought to rely upon new evidence, being an affidavit of Mr Adam Gulliver sworn 5 December 2017. The effect of this evidence was that Mr Gulliver had carried out various repair work, being the removal of an imperfection on the "front load support" and rear- drivers side folding sideboards that had "a light scratch". Mr Gulliver also said that he had inspected the vehicle and formed views concerning the cause of scratching to the driver-side and door trim. Mr Gulliver asserted that several of the photographs provided by the respondent were "not a true indication of the car after repairs". Otherwise, Mr Gulliver said he had been off work for an extended period of time. 21. The Appeal Panel asked Mr Creak about why the evidence of Mr Gulliver had not been provided at the original hearing. In response, Mr Creak accepted that he could have tracked down Mr Gulliver and approached him to obtain the necessary evidence for the original hearing. 22. The last matter raised by the appellant was one of jurisdiction. The appellant asserted that the respondent was not a consumer, that the claim was over $40,000 and that the Tribunal did not have jurisdiction to hear the claim. The Appeal Panel noted that the dispute concerned a new car to which any $40,000 limit did not apply and that while claims may have been made under the Australian Consumer Law (NSW), ultimately, the claim involved the breach of a contract for the supply of a new motor vehicle. In this regard, the Appeal Panel noted the Tribunal had found the vehicle was defective when supplied. Consequently, this ground did not appear to be pursued. In any event we would not accept the submission for the reasons identified by the Appeal Panel at the hearing. Consideration 1. The appellant has a right of appeal on a question of law. Otherwise, the appellant requires leave to appeal: s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). 2. Leave may only be granted in the circumstances set out in Sch 4 cl 12 of the NCAT Act because this is an appeal from a decision of the Consumer and Commercial Division. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. This requires the appellant to demonstrate it may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence for there was significant new evidence which is now available that was not reasonably available at the time of the hearing. 3. In relation to new evidence, the decision of Al Daouk v Mr Pine t/a Furnco Bankstown [2015] NSWCATAP 111 explained what is meant by the expression "not reasonably available". At [23] the Appeal Panel said: … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. 1. In the present case, it is clear that all new evidence on which each of the parties now seeks to rely could reasonably have been obtained by them for the purpose of the original hearing. Further, it is clear that the directions made by the Tribunal prior to the hearing of the proceedings at first instance afforded the parties an opportunity to produce such evidence as they wished in support of their respective positions. In these circumstances, and having regard to the concessions of the parties made during the hearing of the appeal, the Appeal Panel is not satisfied the new evidence now sought to be relied upon was not reasonably available for the original hearing. Accordingly, all new evidence is rejected. 2. In relation to the ground of appeal that the Tribunal Member was biased and should have disqualified himself, this issue was not raised with the Tribunal at the original hearing. Even if it is accepted that Mr Creak asked the Tribunal Member whether he had heard earlier proceedings involving the appellant (a conversation denied by the respondent), no application was made to the Tribunal Member to disqualify himself. In these circumstances, and in the absence of any evidence to suggest any form of actual bias, this ground of appeal should be dismissed. 3. In relation to the procedural fairness ground, it is clear from the explanation which the Appeal Panel received at the hearing (including from respondent who said that the Tribunal Member at the original hearing spoke more to Mr Creak and explained various issues and sought submissions from Mr Creak on these issues), that there has been no denial of procedural fairness to the appellant. To the contrary, it is clear that the Tribunal considered the written evidence and submissions provided prior to the hearing and gave every opportunity to the appellant to respond to questions and concerns the Tribunal might have concerning what orders should be made. Accordingly, this ground of appeal fails. 4. The final ground raised in the appeal is whether the Tribunal was in error in its factual conclusions. This ground requires leave to appeal. 5. In relation to the submission concerning unsigned quotations and reports, we do not accept that the Tribunal could not take account of this material. 6. The Tribunal had before it statutory declarations and photographs from the respondent and his witnesses recording defects in the vehicle which were photographed on the day delivery of the new vehicle was made or shortly thereafter. Secondly, the Tribunal had before it evidence that there had been some attempted repairs by the appellant, a matter itself corroborating some defects existed at the time of sale. Thirdly, while unsigned at the time of the original hearing, the Tribunal had before it evidence from a repairer in the form of a report and quotation setting out that the vehicle had been inspected after repairs had been carried out in May 2017, that defects were observed and providing relevant evidence concerning the work required to rectify the defects and the costs of doing so. Lastly, the Tribunal had before it competing evidence from Mr Creak. 7. The Tribunal did not accept all of the claims made by the respondent, the award being for an amount of $1500.00 only. 8. While some of the documents were unsigned, in circumstances where the rules of evidence do not apply, the Tribunal was able to have regard to this material, the question being one of weight to be given to such evidence: see eg Khan v Kang [2014] NSWCATAP 48 at [30] and following. 9. The reasons of the Tribunal identify the relevant evidence and explain why the evidence of Mr Creak was not preferred to that contained in the report and quotation, the reason being that Mr Creak was not an independent witness. 10. These conclusions were reasonably available to the Tribunal. Further, it could not be said that a consideration of "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance": cf Collins at [77]. Certainly, the decision was not against the weight of evidence and the Appeal Panel is not otherwise satisfied that the appellant may have suffered a substantial miscarriage of justice. 11. It follows that this ground of appeal fails and leave to appeal should be refused. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused and 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: 27 February 2018