Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patil v Goru [2018] NSWCATAP 161 Hearing dates: 07 June 2018 Date of orders: 28 June 2018 Decision date: 28 June 2018 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member DAC Robertson, Senior Member Decision: (1) Application for leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – questions of fact – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Fox v Percy (2003) 214 CLR 118 Category: Principal judgment Parties: Lingaraj Patil & Priya Desai (Appellants) Anand Goru & Ajitha Goru (Respondent) Representation: In person (Appellants) In person (Respondent) File Number(s): AP 18/14321 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 28 February 2018 Before: C Xuereb, General Member File Number(s): COM 17/49017 REASONS FOR DECISION 1. The appellants, Mr Patil and Ms Desai, and the respondents, Mr and Ms Goru, reside at neighbouring properties in South Wentworthville and share a dividing fence. 2. Six panels of the metal dividing fence were damaged during July and August 2017. Photographs of the damage show indentations in the fence panels apparently caused by some form of projectile. During the hearing of the appeal the parties agreed that the cost of repairs to the fence was $600, being the amount specified in a repair quotation dated 14 September 2017. 3. In the decision under appeal, the Tribunal Member found that damage to the dividing fence was caused by either Mr Patil or Ms Desai, or both of them. The Tribunal Member ordered that the fence panels be replaced in accordance with the quotation dated 14 September 2017. The Tribunal Member ordered that the repairs be commissioned and paid for in full by the appellants, failing which the respondents may carry out the repairs and recover from the appellants the amount ordered to be paid by them. These orders were challenged on the appeal. 4. At the hearing of the appeal both appellants and both respondents appeared in person. 5. Pursuant to section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ((NCAT Act), the appellants have a right of appeal on a question of law and may appeal by leave of the Appeal Panel on other grounds. As this is an appeal from the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal only: If the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceeding under appeal were being dealt with). 1. The appellants did not identify any question of law raised by the appeal. They said that the decision of the Tribunal Member was not fair and equitable and was against the weight of evidence. Although the appellants did not claim in the Notice of Appeal that significant new evidence was available to support the appeal, in their oral submissions the appellants did rely on evidence which was not before the Tribunal Member in support of the appeal. 2. It follows that the appellants require leave to appeal in this case. 3. In respect of the application for leave on the basis that the decision was not fair and equitable, the appellants submitted in their notice of appeal that, at the end of the hearing, the Tribunal Member said that he would review the evidence and make a decision in six weeks, whereas in fact the decision was made approximately one hour and 10 minutes after the conclusion of the hearing. In their oral submissions on the hearing of the appeal, the appellants said that the Tribunal Member had stated that he would provide his decision in 4 to 6 weeks. They said that, as the Tribunal Member gave his decision within a short period of time after the conclusion of the hearing, he could not have considered all of the written materials provided to him by the appellants. 4. The appellants provided a document which was said to be a transcript of relevant portions of the hearing before the Tribunal Member. In fact it is not a transcript, but more the appellants' interpretation of the transcript. In any event, according to this document, the Tribunal Member said that a decision would be made in 2 – 6 weeks. 5. Although the respondents did provide a transcript of certain portions of the hearing before the Tribunal Member, they did not provide a transcript of what was said by the Tribunal Member in relation to the time which would be required to provide reasons. The respondents said that the Tribunal Member had in fact stated that it may take 2 or 4 or up to 6 weeks to provide his decision, without committing to a time frame. 6. In our view it does not matter what precisely was said by the Tribunal Member in this regard. It does not follow from the fact that a decision was provided quickly that the Tribunal Member did not take into account all relevant considerations. The issues are not complex. We do not consider that the fact that the decision was provided quickly demonstrates that the appellants may have suffered a substantial miscarriage of justice. 7. In respect of the application for leave to appeal on the basis that the decision was against the weight of evidence, in their oral submissions the appellants identified four categories of issues: that a witness, Ms Hawke had no credibility and had given evidence which was unreliable; that the Tribunal Member had relied upon a video of a separate incident occurring on 16 October 2017 in deciding responsibility for the damage to the fence which had occurred in July and August 2017; that the Tribunal member had wrongly concluded that all of the damage was caused from the appellants' side of the dividing fence; and that the appellants suspected that the damage was in fact caused by the respondents or by others. 8. As to the evidence of Ms Hawke, she gave oral evidence on oath to the Tribunal and was cross-examined. Ms Hawke did not give evidence that she saw either Mr Patil or Ms Desai throwing rocks at the dividing fence. However she gave evidence that on one occasion she had an argument with Ms Desai, who at the time was standing on a step ladder and looking over her fence into Ms Hawke's property. Ms Hawke gave evidence that after the argument she saw Ms Desai step down from the ladder after which she saw a stone fly in the air and hit the dividing fence shared by the appellants and the respondents. Ms Hawke also gave evidence that on a number of occasions she noticed that the security lights in the appellants' property were turned off and on these occasions she heard the noise of stones being thrown. Ms Hawke's evidence therefore indirectly corroborated the allegations made by the respondents that the damage to the dividing fence was caused by the appellants. It is clear from the reasons given by the Tribunal Member that he accepted the reliability and credibility of the evidence given by Ms Hawke. 9. The Tribunal Member saw and heard Ms Hawke give her evidence. We did not. We must make all due allowance for the advantages available to the Tribunal Member in having seen and heard Ms Hawke give evidence. In particular, we should not interfere with his credibility based findings unless satisfied that they were inconsistent with, or glaringly improbable having regard to, incontrovertible evidence: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. We are comfortably satisfied having regard to this principle that there is no basis to interfere with the Tribunal Member's acceptance of Ms Hawke's evidence. 10. As to the incident occurring on 16 October 2017, there is no reference to this incident at all in the reasons given by the Tribunal Member. We were taken to a portion of the transcript of what occurred before the Tribunal Member. The transcript indicates that a video of events which occurred on 16 October 2017 was played at the hearing. Mr Patil was asked questions about the video but declined to answer on the grounds that his answer might tend to prove that he had committed an offence. The Tribunal Member did not require Mr Patil to answer the questions in these circumstances. We see no error in the approach taken by the Tribunal Member and certainly do not consider that the approach taken led to a substantial miscarriage of justice. 11. The appellants argued in this appeal that the Tribunal Member wrongly concluded that the damage was caused from the appellants' side of the dividing fence. However the Tribunal Member's reasons noted a concession by the appellants that the damage to the fence was caused from their side. The appellants said that this was not correct and that they had only conceded at the hearing that some of the damage was caused from their side of the fence. 12. The respondents took us to a portion of the transcript of the hearing in which Mr Patil agreed with the Tribunal Member on two occasions that the person who damaged the fence must have been inside his property. There was no qualification to this concession or any suggestion that some of the damage was not caused from inside Mr Patil's property. We are satisfied that the Tribunal Member correctly and accurately noted a concession made by Mr Patil at the hearing on this issue. 13. The appellants said, as they had said to the Tribunal Member, that they suspected that the respondents had caused the damage by jumping over the fence and throwing rocks at the fence from their side. However the appellants conceded that they could not prove that this was the case. Having regard to this concession, it cannot be said that the decision was against the weight of evidence. 14. In respect of the application for leave to appeal on the basis of new evidence, the appellants said that Mr Patil was ill on one of the days on which it was alleged that damage had occurred. They said that a medical certificate established this fact but that that they did not provide this medical certificate to the Tribunal Member. 15. Plainly enough the medical certificate was reasonably available at the time of the hearing. In any event the Tribunal Member found that it was either Mr Patil or Ms Desai who caused the damage, or both of them. In these circumstances we do not consider evidence that Mr Patil was ill on one of the relevant occasions to be significant. 16. It follows that we do not consider that the appellants may have suffered a substantial miscarriage of justice and we refuse leave to appeal. The appeal should be dismissed. Orders 1. Application for leave to appeal refused 2. Appeal 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: 28 June 2018