Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Carlson v ARA Engine Reconditioning Pty Ltd [2019] NSWCATAP 149 Hearing dates: 28 March 2019 Date of orders: 18 June 2019 Decision date: 18 June 2019 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member Dr J Lucy, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Any application for costs, together with submissions and evidence in support of the application, is to be lodged with the Appeal Panel and given to the other party within 14 days of the publication of these orders. 4. Any submissions and evidence in response to the costs application are to be given to the Appeal Panel and the other party within 14 days thereafter. 5. Any submissions in reply are to be given to the Appeal Panel and the other party within 7 days thereafter. 6. Submissions are not to exceed five pages in length. 7. The parties are on notice that, subject to their submissions, the Appeal Panel proposes to dispense with a hearing and determine any costs application on the basis of the submissions and evidence provided. Catchwords: APPEAL – Consumer claim – Where respondent engaged by applicant to repair vehicle engine – Where appellant claimed respondent had failed to repair engine properly - Where respondent failed to comply with Tribunal's orders to return engine to appellant – Where appellant said he could not obtain an expert report without the engine – Where appellant did not request an adjournment - Whether Tribunal denied the applicant procedural fairness by failing to offer to adjourn the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law Fair Trading Act 1987 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12 Collins v Urban [2014] NSWCATAP 17 EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 Italiano v Carbone [2005] NSWCA 177 Jackson v N K Tiling Pty Ltd [2017] NSWCATAP 106 Liristis v Corrective Services New South Wales (No 3) [2019] NSWSC 561 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568 Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 Thompson v Chapman [2016] NSWCATAP 6 Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236 ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 Texts Cited: Nil Category: Principal judgment Parties: Damien Carlson (Appellant) ARA Engine Reconditioning Pty Ltd (Respondent) Representation: G Organ (agent for Appellant) A and J Kelleyan (Respondent employee/officer) File Number(s): AP 18/53550 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 November 2018 Before: J Levingston, General Member File Number(s): MV 18/30800 REASONS FOR DECISION 1. These proceedings concern a dispute about the alleged failure of ARA Engine Reconditioning Pty Ltd to properly repair an engine. The appellant, Mr Carlson, appeals from the Tribunal's orders dismissing his application for compensation for the cost of a new engine and some other expenses. 2. One of Mr Carlson's grounds of appeal was that he was unable to obtain expert evidence, because ARA Engine Reconditioning did not give him access to the engine as it was required to do by the Tribunal's orders. We considered that this identified a question of law, being whether the Tribunal had failed to comply with the rules of procedural fairness by not offering Mr Carlson an adjournment. However, we decided that the Tribunal had complied with procedural fairness in the circumstances of the case. 3. We did not consider that Mr Carlson's other grounds of appeal had merit and we dismissed the appeal. Background 1. ARA Engine Reconditioning is an engine re-conditioner. Mr Carlson's father-in-law, Mr Organ, emailed the company requesting it to repair the diesel engine in Mr Carlson's Mitsubishi Triton. Mr Organ works in the automotive industry. 2. ARA Engine Reconditioning provided a quote of $5,600 for a new AMC head kit with the cylinder head, gasket set and head bolts, labour, oil, oil filter and coolant. Mr Organ accepted this quote. 3. ARA Engine Reconditioning removed the cylinder head and fitted the new head as instructed. Mr Organ also instructed ARA Engine Reconditioning to fit a new timing kit, water pump, thermostat and radiator. ARA Engine Reconditioning performed the work and provided Mr Carlson with an invoice describing the work done. 4. About three or four weeks later, a problem arose with the vehicle and it was towed to the workshop of ARA Engine Reconditioning. The engine cylinders had filled with diesel. Mr Carlson gave instructions to ARA Engine Reconditioning to replace the fuel injectors. 5. ARA Engine Reconditioning advised that the work required four new injectors and other parts including injector sealing washers. Mr Organ obtained some of the parts and instructed ARA Engine Reconditioning to re-use the old injector sealing washers. 6. About two or three weeks after collecting the vehicle, Mr Carlson found that the engine compression was low in cylinder 1. The vehicle was again towed to the workshop of ARA Engine Reconditioning. 7. ARA Engine Reconditioning's mechanic found that the engine had been partially stripped by Mr Carlson and Mr Organ. He found that there was a hole in the top of number 1 piston and that another piston had suffered detonation. The parties agreed upon the work ARA Engine Reconditioning was to carry out. 8. When Mr Carlson went to collect the car, ARA Engine Reconditioning refused to release it unless he signed a form of release. He refused to do so. 9. Mr Carlson applied to the Tribunal for an order that ARA Engine Reconditioning pay him the amount of $10,771. He subsequently revised this to a claim for over $40,000, to cover the cost of a new engine and components, the engine fitting, registration, CTP and comprehensive insurance wasted over twelve months and twelve months' depreciation on the vehicle. 10. The matter came before the Tribunal for directions a number of times before the final hearing. On the first occasion, the Tribunal directed ARA Engine Reconditioning to return the engine to Mr Organ. When Mr Organ tried to collect the engine, ARA Engine Reconditioning would not release it unless he signed a release. 11. At the Tribunal hearing, Mr Carlson argued that ARA Engine Reconditioning had not done all the work it was required to do under the contract it had with him. He said that, when it first had the car to repair the engine, it had an obligation to check the engine generally and advise if there was any other work required. He said that it should have replaced an air filter and advised him about testing the fuel injectors before putting them back into the engine. Mr Carlson said that the failure to check the fuel injectors and other parts whilst it was doing the work was a failure to exercise due care and skill. 12. Mr Carlson also said that the parties had agreed to additional specified work which ARA Engine Reconditioning did not carry out. 13. ARA Engine Reconditioning said that the work requested was that recorded on the tax invoices and that was all it was required to do under the agreements with Mr Carlson. 14. The Tribunal accepted ARA Engine Reconditioning's position that the contract was to do the work which was specified on the tax invoices. It found that there was objective evidence to support this. It also found that, if Mr Carlson had requested the work which he now says should have been done, he would have questioned why it was not done when he paid the tax invoice. 15. The Tribunal preferred the evidence of the experts provided by ARA Engine Reconditioning to the expert evidence relied upon by Mr Carlson (that is, Mr Organ's evidence). ARA Engine Reconditioning's expert evidence was about the cause of the piston failure or engine failure. 16. The Tribunal identified the application as having been made under the Motor Dealers and Repairers Act 2013. The Tribunal found it had power to make orders under the Australian Consumer Law, as applied in New South Wales by the Fair Trading Act 1987 (NSW). It concluded that there had been no breach of the guarantee under s 60 of the Australian Consumer Law to render services with due care and skill. It found that ARA Engine Reconditioning was not asked to do any work other than the work set out in its tax invoice and that Mr Carlson had not proved that the failure of the engine was as a result of something ARA Engine Reconditioning did or failed to do. 17. The Tribunal dismissed the application and made an order requiring ARA Engine Reconditioning to make the engine and its components immediately available for collection by Mr Carlson, unconditionally. Grounds of Appeal 1. Mr Carlson relied upon the following grounds of appeal in his Notice of Appeal: "The respondent had refused to return the diesel engine and components, so I could get a number of expert witnesses to prove my case against the respondent. The respondent had two NCAT members orders to return the engine and components and when I went to pick up the engine and components the respondent wanted a deed of release signed which said the I [sic] remove my case in NCAT and that no other legal action would be taken against the respondent. Another order was given by a NCAT member that the respondent cannot apply for extra time, yet they did and were approved. The respondent had reached a NSW Fair Trading agreement, but refused to comply and refused to work on the engine. The respondent and his expert witness have misled NCAT in regard to the Expert Witness gives his opinion on the condition of the cylinder head, the original cylinder head was taken by me when I picked up the ute. The member did not follow NCAT protocol and procedures. The member did not allow my representative to put my case before him. The member stated that the procedure to be used will be a Q&A type presentation. Both sides were totally confused and unprepared. My representative stated that I had not been given any opportunity to firstly present my case, due to the constant interruptions by the respondent and his verbal abuse, which the respondent received several warnings from each individual member. although the respondent was given direct NCAT members orders to return the engine and components to be inspected and reported by the expert witnesses in the fields of Automotive Engineering, Diesel Fuel Injection, and Engine reconditioning. The member stated he would take a while to read all the documents, as he had not read any of the previous hearings, but within a couple of hours a decision was done." 1. At the hearing of the appeal, Mr Carlson's agent, Mr Organ, agreed that Mr Carlson's grounds of appeal could be characterised as follows: 1. He was unable to obtain expert evidence, because the respondent did not give him access to the engine as required by the Tribunal's orders (Ground One); 2. The Tribunal interrupted him and allowed the respondent to interrupt him at the hearing (Ground Two); 3. The Tribunal was misled by the expert evidence of the respondent (Ground Three); and 4. The Tribunal made its decision in two hours (Ground Four). Nature of an appeal 1. An appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2)(b)). A question of law 1. The Appeal Panel considered a number of questions of law which would give rise to an appeal as of right in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. It stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any procedural fairness considerations that might arise to the respondent) (Prendergast at [12]). Leave to appeal 1. For the appeal grounds which do not raise errors of law, leave to appeal is required. In appeals from a decision of the Consumer and Commercial Division, an Appeal Panel may grant leave only if the 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) (NCAT Act, Sch 4, cl 12(1)). 1. The principles to be applied by an Appeal Panel in determining whether to grant leave to appeal are well settled. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant authorities at [65]-[79] and concluded at [84](2) that: 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 of 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. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). Ground One: Appellant's inability to obtain expert evidence 1. The first ground is that Mr Carlson was unable to obtain expert evidence because ARA Engine Reconditioning refused to give back the engine and its components, notwithstanding the Tribunal's order that it do so. Mr Organ said at the appeal hearing that he had arranged for several experts to provide reports, but without the engine and components he could not obtain that evidence to prove his case. 2. The Tribunal had made the following order, on the first occasion that the matter was before it: "The applicant's representative Greg Organ shall attend and collect from the respondent's business the motor engine and all other parts/items that the respondent has in his possession at 10.30am on 20-Aug-2018." 3. It is not in dispute that, after this order was made, ARA Engine Reconditioning refused to give Mr Organ the engine and components unless he first signed a deed of release. 4. We are satisfied that this ground raises a question of law, being whether the Tribunal denied Mr Carlson procedural fairness by failing to offer Mr Carlson an adjournment when he had not had a reasonable opportunity to obtain his expert evidence. It is appropriate that we identify this question of law in accordance with the principles in Prendergast. 5. Mr Organ agreed at the hearing of the appeal that neither he nor Mr Carlson had sought an adjournment at the Tribunal hearing. He said that he had informed the Tribunal member of the refusal of ARA Engine Reconditioning to return the engine. 6. We have reviewed the transcript of the hearing, made on behalf of Mr Carlson. Mr Organ acted as Mr Carlson's agent during the hearing but also told the Tribunal member that he was an expert witness. According to the transcript, Mr Organ said to the Tribunal member early in the hearing, "we haven't had the vehicle for 12 months." At a later point Mr Organ said, "they have ignored members orders" but did not explain what he meant by that. At about a third of the way through the hearing, ARA Engine Reconditioning's representative asked Mr Organ, "Why did you attempt to come pick up your engine that was fixed if we didn't agree?" and Mr Organ responded, "We had an order from NCAT." The transcript does not record Mr Organ saying anything at the hearing about not having been able to prepare expert evidence because of the non-compliance by ARA Engine Reconditioning with the Tribunal's orders. 7. Mr Organ said, during the Appeal hearing, that the recording was of poor quality, there was a lot missing and he could not get an accurate account of the hearing as a result. If the recording was faulty as Mr Organ suggests, there is no evidence before the Appeal Panel of the matters he claims were said but were not recorded properly. We have only had regard to the evidence before us as to what was said at the hearing. 8. Mr Organ filed documents, written by him, providing a critique of the expert reports relied upon by ARA Engine Reconditioning. At the end of the document entitled "Geoff Senz's Technical Report – Misleading Statements," Mr Organ wrote: At no time has ARA Engine Reconditioning did allow me or Damien inspect or even look at the engine and components. Although, three NCAT members ordered ARA Engine Reconditioning to return the engine and components without any conditions. The Applicant, Damien Carlson has been totally disadvantaged throughout the NCAT four hearings, even though each of the three members gave NCAT orders to return the goods. 1. Mr Organ made similar statements towards the end of a document headed "Page 47 to 67 – MINOR Expert Report. Geoff Senz – printed on the 24th of October" which was also before the Tribunal member. 2. This material, along with the statements made orally at the hearing, was enough to alert the Tribunal member to the issue that ARA Engine Reconditioning had retained Mr Carlson's engine, contrary to the Tribunal's orders, and that Mr Carlson claimed to have been disadvantaged as a result. 3. The right of a party to be given an opportunity to be heard "includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker": Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568 at [50]. Further, "a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness": Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]; see also Italiano v Carbone [2005] NSWCA 177 at [175]; ZCA v NSW Trustee & Guardian [2016] NSWCATAP 192 at [40]. 4. It is not always necessary for an applicant to apply for an adjournment for there to be a breach of procedural fairness in a tribunal failing to offer one. In Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 at ALR 343, Deane J stated: "[t]he failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment." Similarly, in Italiano v Carbone [2005] NSWCA 177 at [105], Basten JA referred to the statutory requirement that the former Consumer, Trader and Tenancy Tribunal "must ensure" that each party is given "a reasonable opportunity" to present the party's case and commented that, "[w]here necessary this will entail offering an appropriate adjournment, whether sought or not." This Tribunal is required by subsections 38(2) and 38(5)(c) of the NCAT Act to provide each party with a reasonable opportunity to present the party's case. 5. Deane J's comment in Sullivan, which is cited above, was recently referred to with approval by Kenny J in EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [22] and by Rothman J in Liristis v Corrective Services New South Wales (No 3) [2019] NSWSC 561 at [24]. In EPH17, a solicitor had withdrawn representation the day before a hearing and the self-represented party informed the court that that he would not be able to make proper submissions in support of the application. He did not expressly seek an adjournment. Kenny J observed at [24]: …in circumstances like the present, the relevant duty of a court (or a tribunal) is to ensure that a party is given a reasonable opportunity to present his case. In the circumstances that unfolded before the primary judge, it seems to me that, notwithstanding an adjournment was not expressly sought, the Court's failure to clarify with the applicant what had in fact happened and whether or not he sought an adjournment, and to adjourn if that was what he sought, was a failure to allow the applicant properly to present his case, and a breach of the rules of natural justice. 1. Kenny J continued at [32]: It is also relevant in this context to bear in mind the duty of the Court to assist a self-represented litigant, which strengthened the need for the primary judge to clarify with the applicant what had in fact happened and whether or not he sought an adjournment. As Mortimer J said in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; 238 FCR 158 at [113] "if a court is or should be put on notice, through the evidence and material before it, of an arguable procedural problem in its own proceeding that may deprive a litigant of an effective choice in the proceeding, or impede the litigant's opportunity to present her or his case and arguments, then in my opinion the Court may have a duty to assist a self-represented person to surmount that procedural problem". See also SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [39]–[46] (Robertson J), [50]–[55] (Allsop CJ); Hamod v New South Wales [2011] NSWCA 375 at [311]. 1. The Appeal Panel has indicated, on a number of occasions, that the Tribunal may be required, as a matter of procedural fairness, to offer an adjournment in circumstances where a self-represented party did not ask for an adjournment: see, for example, ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 at [39]; Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236 at [21]; Jackson v N K Tiling Pty Ltd [2017] NSWCATAP 106 at [37]. 2. The question of whether the Tribunal was required, as a matter of procedural fairness, to offer Mr Carlson an adjournment, turns on the material which was before the Tribunal and what was said at the hearing for Mr Carlson. 3. On the one hand, Mr Carlson filed two documents, stating that he had been disadvantaged by the failure of ARA Engine Reconditioning to return his engine to him in accordance with the Tribunal's orders. On the other hand, Mr Organ did not request an adjournment, and the transcript does not indicate that he told the Tribunal that he had been unable to provide an expert report as a result of ARA Engine Reconditioning's non-compliance. On the contrary, Mr Organ informed the Tribunal that he was an expert and filed documents critiquing the reports of ARA Engine Reconditioning's experts. 4. In these circumstances, we do not consider that the Tribunal was obliged, as a matter of procedural fairness, to offer Mr Carlson an adjournment. It was entitled to take the view that Mr Carlson had decided to provide expert evidence in the form of documents criticising ARA Engine Reconditioning's experts, rather than in the form of an expert report. 5. If we are wrong, and the Tribunal was required to offer Mr Carlson an adjournment, or to inform him of the right to apply for an adjournment, then this is not an error in respect of which we would grant any relief. That is because the Tribunal's decision turned on the terms of the contract, not upon the cause of the piston failure or engine failure. The Tribunal found that ARA Engine Reconditioning had done the work it was required to do under the contract with Mr Carlson, and that it was not required to check the fuel injectors, check the engine generally, advise about the replacement of an air filter or advise Mr Carlson if other work was required. 6. Mr Carlson's case, as put to the Tribunal, is not clearly set out in the material before the Appeal Panel. According to the Tribunal, his case was that ARA Engine Reconditioning did not exercise due care and skill because it did not check the fuel injectors and other parts while it was doing the work. The Tribunal rejected this contention because it found ARA Engine Reconditioning was not contractually obliged to check the fuel injectors or other parts. The expert evidence was therefore not determinative of the outcome of the case. It follows that the Tribunal's failure to offer an adjournment, or an opportunity to apply for an adjournment, did not cause Mr Carlson any "practical injustice": see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, at [37]; and see also Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12 at [46]. 7. This ground is dismissed. Ground 2: Interruptions at the hearing 1. Ground 2 is that the Tribunal member allowed Mr Carlson and/or Mr Organ to be interrupted at the hearing, and interrupted them himself. 2. This ground is also capable of identifying a question of law, being whether the Tribunal failed to comply with the rules of procedural fairness by not allowing Mr Carlson a proper opportunity to be heard. 3. Mr Organ said very little about this ground at the appeal hearing. We have reviewed the transcript he prepared, and we agree that the transcript indicates that the Tribunal member interrupted him at times. However, Mr Organ participated in the proceedings and had an opportunity to cross examine ARA Engine Reconditioning's witnesses. We are not satisfied that the interruptions were such that the applicant was denied a reasonable opportunity to be heard. 4. We reject this ground. Ground 3: Tribunal misled by expert evidence 1. Mr Carlson contends that the Tribunal erred in that it was misled by ARA Engine Reconditioning's expert evidence. In particular, Mr Organ said that the statement of the expert Mr Senz, to the effect that he inspected original cylinder head, was incorrect as Mr Organ had that in his workshop. Mr Organ also told the Appeal Panel that he disagreed with the opinion of ARA Engine Reconditioning's experts that the fuel injectors were blocked. 2. This ground does not raise a question of law, meaning that leave is needed for Mr Carlson to appeal on this ground. The relevant bases on which Mr Carlson sought leave was that he may have suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable and because it was against the weight of evidence (NCAT Act, Sch 4, cl 12(1)(a) and (b)). 3. Mr Carlson submitted that the decision was not fair and equitable because he could not present his expert reports as he could not get the engine and its components back from ARA Engine Reconditioning (see NCAT Act, Sch 4, cl 12(1)(a)). He also said that the decision was against the weight of evidence because he could not get those reports (see NCAT Act, Sch 4, cl 12(1)(a)). 4. We have dealt with the question of Mr Carlson's ability to present expert reports in a different context above. 5. We are not satisfied that Mr Carlson "may have suffered a substantial miscarriage of justice" for either of the reasons given by him. 6. The contention that the decision was against the weight of evidence because it did not take account of expert evidence which Mr Carlson had not obtained misconstrues cl 12(1)(b) of Sch 4 to the NCAT Act. A decision is only "against the weight of evidence" if it is against the weight of the evidence which is before the Tribunal. Clause 12(1)(b) does not look to evidence an applicant has not been able to obtain. Mr Carlson has not contended that any of the material which was in evidence was given insufficient weight by the Tribunal. 7. Mr Carlson has not established that the decision was not fair and equitable for the reasons given by him. Mr Carlson filed documents, written by Mr Organ, critiquing the expert evidence of ARA Engine Reconditioning and did not ask for an adjournment or a further opportunity to file any expert reports. Further, any unfairness arising out of Mr Carlson's inability to retrieve his engine was mitigated by the Tribunal deciding the matter on the basis of the terms of the contract. The unfairness, if any, did not affect the Tribunal's conclusion. 8. Another reason why there was no unfairness in the Tribunal accepting the expert reports of ARA Engine Reconditioning's witnesses, Mr Senz and Mr Booth, was that Mr Organ was generally in agreement with their expert opinions. Mr Organ, in his written response to Mr Senz's report, stated that he agreed with Mr Senz and Mr Booth, the other expert, that the damage to the engine was caused by a faulty injector. He said, however, that when ARA Engine Reconditioning removed the injectors, it did not clean or test them as he said it was required to do. As the Tribunal found that the company was not required to clean or test them, it is not clear to us how any expert reports obtained by Mr Carlson would have been of assistance to him. Mr Carlson has not explained what expert evidence he could have adduced which would have made a difference to the outcome. 9. The Tribunal considered all the evidence, including that of Mr Organ, and said it preferred the evidence of Mr Booth and Mr Senz. Mr Carlson has not identified any error in the Tribunal's fact-finding process. 10. The Tribunal refuses leave to appeal on this ground. Ground 4: The Tribunal made its decision in two hours 1. Mr Organ contends that, at the end of the hearing, the Tribunal member said that this would not be a quick decision, then made his decision in two hours. 2. This ground of appeal does not raise a question of law. 3. We are not satisfied that this ground raises any error at all. The decision is a substantial one of thirty-six paragraphs. It has not been contended that the reasons were inadequate. 4. There is no basis upon which we could grant leave in respect of this ground within cl 12 of Sch 4 to the NCAT Act. Even if there was, we would refuse to grant leave in our discretion because no error has been identified. 5. We refuse leave to appeal on this ground. Costs 1. We did not hear from the parties in relation to the issue of costs during the hearing. 2. The general position in the Tribunal is that parties pay their own costs unless the Tribunal is satisfied that special circumstances warrant an order for costs: see NCAT Act, s 60. However, for proceedings in the Consumer and Commercial Division, this position is subject to r 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules). Rule 38 relevantly states that the Tribunal may make an order for costs in the absence of special circumstances if the amount claimed or in dispute in the proceedings is more than $30,000. 3. The amount claimed by Mr Carlson in the proceedings before the Tribunal was more than $30,000. Rule 38 therefore applied to costs of the Tribunal proceedings. What was in dispute on the appeal was also more than $30,000. The operation of r 38A of the Rules means that r 38 also applies to the appeal proceedings. This means that we can make an order for costs in the absence of special circumstances. 4. Rule 38 does not specify the factors to be taken into account in exercising the discretion to award costs in accordance with that provision. In Thompson v Chapman [2016] NSWCATAP 6, the Appeal Panel discussed the exercise of the discretion, stating at [69[ to [72]: 69. The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97. 1. In this case, ARA Engine Reconditioning was the successful party on appeal. While it was not legally represented at the appeal hearing, both parties were given leave for legal representation. We accept that costs may have been incurred costs that would be recoverable under a costs order. 2. In these circumstances, we have made procedural directions to deal with any application for costs. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Any application for costs, together with submissions and evidence in support of the application, is to be lodged with the Appeal Panel and given to the other party within 14 days of the publication of these orders. 4. Any submissions and evidence in response to the costs application are to be given to the Appeal Panel and the other party within 14 days thereafter. 5. Any submissions in reply are to be given to the Appeal Panel and the other party within 7 days thereafter. 6. Submissions are not to exceed five pages in length. 7. The parties are on notice that, subject to their submissions, the Appeal Panel proposes to dispense with a hearing and determine any costs application on the basis of the submissions and evidence provided. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 18 June 2019