Amer v Eriksson

[2019] ACAT 108

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AMER v ERIKSSON (Appeal) [2019] ACAT 108

AA 12/2019 (XD 1460/2018)

Catchwords:  APPEAL – civil dispute – damages – cost of necessary repairs to taxi driven by respondent – no loss assessors report before original tribunal – application to receive loss assessor report on appeal refused – appeal proceeded on evidence before original tribunal – no error shown – appeal dismissed

Subordinate

Legislation cited:      ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2)

Cases cited:  August v Commissioner of Taxation [2013] FCAFC 85

Bellgrove v Eldrige (1954) 90 CLR 613

CDJ v VAJ [1998] HCA 67

Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275

Hillier v R [2008] ACTCA

Jovanovic v R [2015] ACTCA 29

Leighton v The Queen [2017] ACTCA 55

Murphy v Brown (1985) 1 NSWLR 131

Mulholland v Mitchell [1971] AC 666

Tehan v Saric [2010] VSC 175

Thomas v Powercor Australia Limited [2011] VSC 586

Tribunal:        Presidential Member MT Daniel

Date of Orders:  29 August 2019

Date of Reasons for Decision:        29 November 2019AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL          )  AA 12/2019

(XD 1460/2018)

BETWEEN:

MUHAMMAD AMER

Appellant

AND:

CHRISTOPHER ERIKSSON

Respondent

APPEAL TRIBUNAL:        Presidential Member MT Daniel

DATE:  29 August 2019

ORDER

The Tribunal orders that:

1.   Application for fresh evidence to be heard on appeal is refused.

2.   Application for appeal is dismissed, and orders of 8 April 2018 are confirmed.

…………Signed……………..

Presidential Member MT Daniel

REASONS FOR DECISION

1.           On 29 August 2019 I heard and dismissed an appeal from a decision of the tribunal (the Original Tribunal) made 8 April 2019. In the course of hearing the appeal, I also refused an application by the appellant to adduce fresh evidence on the appeal. At the time I gave oral reasons, but said that I would publish short written reasons for the decisions in due course. These are those reasons.

Background

2.           On 31 October 2018 Mr Amer (the appellant) filed a civil dispute (damages) application claiming an amount of $3,540.71 plus reimbursement of the $156 filing fee from Mr Eriksson (the respondent). The respondent had been the driver of a taxi (taxi 173) owned by the appellant, which was involved in a collision on 4 August 2018 and suffered damage. The appellant asserted the respondent was negligent in the motor vehicle accident and was therefore liable to compensate the appellant for the loss he had suffered as a consequence of the accident.

3.           The amount claimed represented $1000 insurance excess payable for the damage to the other vehicle involved in the accident, and $2,540.71 for repairs to the left rear bumper and panel of taxi 173.

4.           In relation to the amount for repairs, a tax invoice (the invoice) was issued by Amers Pty Ltd to the respondent on 5 September 2018, requiring an amount of $2,540.71 be paid. This appeared to comprise $1,737.74 for the costs of replacement parts, $572.00 for 7.15 hours of labour at $80 per hour, and $230.97 in GST.

5.           At the hearing on 8 April 2019, the respondent appeared, with support from Mr Matthews. He submitted that he had not been at fault in the accident on 4 August 2018, and even if he had been at fault the damage to taxi 173 was minor. He said that on the night in question, he took the taxi to the workshop of Amers Pty Ltd and about two hours work was done, including some spray painting, and then taxi 173 was back on the road that night. He said that the invoice was not a genuine document but a sham and questioned whether the work referred to in it had ever been performed.

6.           The appellant was represented on 8 April 2019 by his son, Mr Mohammed. Mr Mohammed submitted to the Original Tribunal that the invoice represented both temporary work done on the night of the accident to get the taxi back on the road, and a further five hours work that was necessary to repair the damage caused in the accident. He said that he had told the mechanics to do the work, and that he believed the work had been done, but he could not specify when.

7.           At the conclusion of the hearing on 8 April 2019 the Original Tribunal ordered the respondent to pay the appellant the amount of $1,345.02. This represented the $1000 excess and $160 for two hours of labour, plus interest on that amount and the filing fee.

8.           The reason the Original Tribunal did not award the appellant the full amount of the invoice was because it was not satisfied that the work necessary to repair the damage to taxi 173 was the work outlined in the invoice.

9.           The Original Tribunal placed little weight on the invoice as evidence of the work necessary to repair the damage to taxi 173. This was because it considered it was not an independent quote or invoice, since the appellant was the sole director and shareholder of Amer Pty Ltd. Nor was there evidence in the nature of an independent loss assessors report to verify the applicant’s claim about the actual cost of repair that was required. The Original Tribunal explained in its oral reasons that on the evidence before it, it could not conclude that anything more than the original two hours of work witnessed by the respondent was necessary to repair the taxi.

The appeal

10.         The appellant appealed the Original Tribunal’s decision. The appellant submitted that the Original Tribunal’s decision “does not represent a fair and reasonable assessment of damages” to the appellant’s taxi.

11.         The application for appeal sought orders that the respondent be required to pay the appellant the sum of $4,420.71 plus interest; the $4,420.71 comprised of the $1000 excess, $2,540.71 for the invoice, $156 for the first filing fee and $559 for the appeal filing fee, and $165 for the cost of an independent motor vehicle assessor’s report.

12.         The respondent opposed the appeal and submitted that the decision of the Original Tribunal should stand. There was no appeal by the respondent from the findings against him.

13.         The appeal was heard on 29 August 2019. The appellant continued to be represented by Mr Mohammed and the respondent was again assisted by Mr Matthews.

The fresh evidence on appeal

14.         Following the Original Tribunal’s decision on 8 April the appellant obtained an assessors report.

15.         The appellant sought to rely on the assessors report and attached documents as fresh evidence at the hearing of the appeal, in order to demonstrate conclusively that it was necessary for taxi 173 to undergo the work set out in the invoice.

16.         The fresh evidence put forward by the appellant consisted of:

(a) assessment report by Mr Graham Roughly of ACT Southern Highland and Motor Loss Assessing Pty Ltd issued to Amers Pty Ltd dated 18 April 2019, which assessed the cost of repairs to be $2,540.71;

(b) extract from AutoEdge Glass’s Guide on the value of a 2013 Toyota Prius I-Tech Hybrid ZVW30R car series dated 18 April 2019; and

(c) vehicle registration extract from Access Canberra.

17.         The respondent opposed the appellant’s application for admission of fresh evidence on the basis that the loss assessors report was obtained eight months after the accident and was not based on “timely physical inspection of actual damage”. The respondent pointed out that there was no photographic evidence taken during the conduct of the repairs to allow a proper assessment of the costs claimed.

18.         Section 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) provides that the Appeal Tribunal “may receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way”. Although the Rules do not prescribe how this power is to be exercised, the Appeal Tribunal’s approach has been to apply the principles established for similar statutory powers in other jurisdictions.

19.         The overarching principle to be applied when considering whether to allow new evidence on appeal is the interests of justice. The power “exists to serve the demands of justice” and is a “remedial” power.

20.         It is not usually in the interests of justice to allow new evidence on appeal. To do so would be inconsistent with the appellate nature of the proceedings, and the public interest of finality in litigation. However, in a particular case it may be in the interests of justice to admit new evidence on appeal if there is an acceptable reason for the evidence not being brought at the original hearing and the new evidence would, or was likely to, have produced a different result.

21.         In considering the first element, the question is whether the new evidence could have been procured with reasonable diligence for the Original Tribunal. If the new evidence could have been available at the original hearing, the Appeal Tribunal must consider whether there was an acceptable reason why it was not relied upon at that time. The appellant submitted that the loss assessors report was not obtained for the original hearing because he believed the evidence already provided was sufficient evidence of loss. That evidence consisted of the invoice from Amer Pty Ltd, and a quote from Janrule Pty Ltd setting out the cost of the parts referred to in the invoice. In considering the sufficiency of the evidence before the Original Tribunal, the appellant had relied on his previous experience dealing with insurance companies who, he said, do not require independent loss assessors reports for claims valued at less than $5,000.

22.         It is a frequent dilemma for applicants in small civil claims to balance the costs expended in obtaining evidence for the proceeding, and the value of the claim. The reality is that even if entirely successful, many expenses such as the costs of expert evidence are never recoverable. So, the sensible applicant will maintain some sense of proportion between the costs of preparing their case and the value of their claim. However, the practical need for proportionality is not itself an acceptable explanation for the failure to put forward at the original hearing evidence subsequently sought to be adduced on appeal. The original hearing is not to be considered a trial run, with further evidence to be obtained and relied upon if unsuccessful at first instance.

23.         The processes of insurance companies should not be relied upon as an indication of what evidence is required in legal proceedings in the tribunal. No doubt insurance companies have their own processes, their own expertise, and their own commercially based approach to resolving matters. The Tribunal, however, is required to act on probative evidence which leads it to be satisfied to the required legal standard.

24.         In this case, given the invoice was created by a related entity, and the curious circumstances surrounding its creation and issuing to the respondent, the low probative value of this document was evident from the outset. In the absence of evidence of the more usual kind in a case of property damage, an independent assessment report was another way of evidencing the appellant’s claimed loss. In this case the cost of obtaining an independent loss assessors report was only $165, and the report seemed to have been provided quickly after the request.

25.         These circumstances disclose no acceptable explanation for the failure to have the loss assessor’s report available at the time of the original hearing.

26.         The next factor to consider is the probative effect of the new evidence. If the loss assessor’s report had been before the Original Tribunal, would this have produced, or been likely to produce, a different outcome?

27.         The loss assessor’s report opines that no adjustment is made to the invoice as it was found to be ‘fair and reasonable’.

28.         I noted at the hearing on 29 August 2019 that the loss assessors report had a number of internal inconsistencies, and inconsistencies with other facts established before the Original Tribunal, that would have led me to place little to no weight on it had it been before me as the Original Tribunal. Chief amongst these was that the vehicle registration extract provided for taxi 173 before the Original Tribunal, demonstrating ownership by the appellant, was for a Toyota vehicle with VIN number ending ‘4053’, but the loss assessor inspected a Toyota vehicle with a VIN ending in ‘3639’. That is a different car.

29.         Even if the Original Tribunal were to put these inconsistencies aside and take the loss assessors report at its highest and as being in relation to taxi 173, I was not satisfied that the report would have or was likely to have produced a different outcome if it had been before the Original Tribunal. This is because in the peculiar circumstances of this case, the evidence required for the applicant to succeed needed to establish it was necessary for the vehicle to undergo more repairs than the two hours of work that was initially undertaken. The loss assessors report is silent on that point, it is not apparent that the loss assessor was given the background information and it does not seem the loss assessor was asked that precise question. The report does not say that the necessary repairs could not have been effected in two hours, or without the replacement of parts. Such evidence might have been forthcoming from the author of the report, if he had been further examined. However, fresh evidence cannot be admitted on appeal only because potentially probative information might be elicited in further oral evidence. The relevant and probative evidence needs to be contained in the document which is sought to be admitted. While it was possible the loss assessors report might have produced a different outcome, the Appeal Tribunal is not satisfied that it would definitely have, or was likely to have, produced a different outcome.

30.         On this basis I was not satisfied it was appropriate to admit the assessment report on appeal. There was no acceptable reason or satisfactory explanation as to why the evidence was not available at the original hearing, nor could it be established that this information would have or was likely to have produced a different outcome before the Original Tribunal.

Was the Original Tribunal in error?

31.         The Appeal Tribunal proceeded to conduct the appeal as a review of the Original Tribunal’s decision, on the evidence before the Original Tribunal.

32.         The Original Tribunal was satisfied that Mr Amer owned taxi 173, that the respondent was driving it when involved in an accident in which the respondent was at fault, and that the damage incurred to taxi 173 was attributable to that accident. None of these findings were contested on appeal.

33.         The basis for the appellant’s appeal was that in reaching its conclusion, the Original Tribunal erred by failing to give sufficient weight to the initial invoice and photographs showing the damage of the vehicle. The appellant claimed the Original Tribunal erred:

(a) in giving insufficient weight to the invoice;

(b) in not having regard to the invoice from Janrule Pty Ltd which showed the usual cost of the motor vehicle parts used to repair the damage;

(c) in failing to rely upon its own knowledge and expertise to ‘join the dots’ between the damage in the photographs and necessity for the work set out in the invoice; and

(d) in only awarding the costs of two hours of labour when in fact seven hours of labour was required.

34.         The appellant pointed the Appeal Tribunal to the evidence before the Original Tribunal of the damage to taxi 173 as shown in the photographs (which was not contested) and of the evidence of what was required to be done to fix that damage. There was the invoice, setting out the cost of certain parts and seven hours of labour. There was information from Janrule Pty Ltd, showing that the cost price of parts referred to in the invoice was accurate. There was information provided by Mr Mohammed at the hearing on 8 April 2019, that he had directed work to be done by the workshop and that he had been told it had been done, but that he could not say when that work had been done. The appellant submitted that it was obvious from the photographs of the damage that the work referred to in the invoice was necessary to repair the damage.

35.         In his response to the appeal filed 9 August 2019, the respondent submitted the Original Tribunal did not err in its conclusion on the evidence before it. The respondent submitted the appellant did not provide receipts or any evidence to prove the parts that were said to be purchased were purchased for the repairs undertaken. The respondent submitted that there was no evidence that parts were ever purchased. There was no contemporaneous evidence that anything more than the original two hours work was ever done. There was no evidence from a mechanic. There was no witness statement which could be probed to ascertain what work was done, when and why. The only evidence was a constructed invoice, which was not independent and was not genuine.

36.         The question before the Appeal Tribunal was whether, in assessing the damages, the Original Tribunal erred in determining how much loss the appellant had suffered. In cases of damage to motor vehicles which is to be repaired, this is often broken into two questions:

(a) whether the repairs are necessary; and

(b) whether the cost claimed for those repairs is reasonable.

37.         The respondent placed much reliance upon the fact the repairs had not been proved to have been undertaken. However, in matters of this kind it is not necessary to prove that the repairs have been, or ever will be, undertaken. Irrespective of whether the damage is ever repaired or not, the claimant need only prove the work that is reasonably required to fix the damage, and the reasonable cost of that necessary work. There is a proviso that the proposed work must not only be necessary to repair the damage, but it “must be a reasonable course to adopt” to do that work.

38.         Where it is established that repair work was not done, as the respondent raised in this case, this may go to the questions of whether the repairs are really ‘necessary’ or a ‘reasonable course of action to undertake’.

39.         On hearing an appeal, it is not enough that the Appeal Tribunal, with the benefit of further submissions from the parties, and further information provided by the parties in those submissions, might itself come to a different conclusion. It is necessary to consider if the Original Tribunal erred in the decision it made, on the evidence before it.

40.         Having reviewed all of the material that was before the Original Tribunal, together with the transcript of the hearing on 8 April 2019, I was not satisfied that the Original Tribunal was in error in finding loss only in the amount of two hours labour. This conclusion was clearly open to it on the evidence. The evidence of the invoice that seven hours labour and replacement of parts was required was not independent and in my view was properly given little weight.

41.         I was not satisfied that there was any error by the Original Tribunal that would justify interference with the finding that two hours work was required to repair the damage to taxi 173, and consequently dismissed the appeal.

………………………………..

Presidential Member MT Daniel

HEARING DETAILS

FILE NUMBER:

AA 12/2019 (XD 1460/2018)

PARTIES, APPLICANT:

Muhammad Amer

PARTIES, RESPONDENT:

Christopher Eriksson

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Presidential Member MT Daniel

DATES OF HEARING:

29 August 2019