Dhawan v Jamiel (Appeal) - [2020] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DHAWAN v JAMIEL (Appeal) [2020] ACAT 25

AA 32/2019 (XD 1519/2018)
AA 36/2019 (XD 1519/2018)
Catchwords: APPEAL – civil dispute – alleged errors of fact and law – whether the original tribunal failed to consider evidence – whether the original tribunal relied on false statements – whether the original tribunal erred in its application and assessment of depreciation – whether an appellant can claim interest on an appeal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7,19, 21, 26, 82

Cases cited:Amer v Eriksson [2019] ACAT 108
August v Commissioner of Taxation [2013] FCAFC 85
CDJ v VAJ [1998] HCA 67
Fox v Percy (2003) 214 CLR 118
Jovanovic v R [2015] ACTCA 29
Leighton v The Queen [2017] ACTCA 55
Mulholland v Mitchell [1971] AC 666
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Powley & Anor v Reynolds [2018] ACAT 103
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Verma & Anor v Reynolds [2018] ACAT 89
Whisprun Pty Ltd v Dixon [2003] HCA 48
Water Board v Moustakas (1988) 180 CLR 491

Appeal Tribunal: President G Neate AM

Senior Member K Katavic

Date of Orders: 14 April 2020
Date of Reasons for Decision: 14 April 2020

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL) AA 32/2019
BETWEEN:

CHANDER PARKASH DHAWAN
Appellant

AND:
YARUB JAMIEL
Respondent

APPEAL TRIBUNAL: President G Neate AM
Senior Member K Katavic

DATE:14 April 2020

ORDER

The Tribunal orders that:

The appeal is dismissed.
Mr Dhawan is to pay to Dr Jamiel the amount of $7,066 within 28 days of this order.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL) AA36/2019
BETWEEN:
YARUB JAMIEL
Appellant

AND:

CHANDER PARKASH DHAWAN

Respondent

APPEAL TRIBUNAL: President G Neate AM
Senior Member K Katavic

DATE:14 April 2020

ORDER

The Tribunal orders that:

The appeal is dismissed.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

Dr Yarub Jamiel and Mr Chander Parkash Dhawan are neighbours. Dr Jamiel made a claim against Mr Dhawan for damage to his synthetic grass and driveway. Mr Dhawan lodged a counterclaim against Dr Jamiel for the recovery of money associated with the construction of a retaining wall, relocation of plants and removal of a pipe.
On 23 September 2019, a Senior Member of the ACT Civil and Administrative Tribunal (the Original Tribunal) ordered that Mr Dhawan pay Dr Yarub Jamiel the sum of $7,066 for damage caused by Mr Dhawan to Dr Jamiel’s driveway and synthetic grass and for the cost of Dr Jamiel filing his application in the Tribunal. The Original Tribunal adopted the references T1 and T2 to describe various areas on Dr Jamiel’s land which were set out in a map at figure 7 of Mr Dhawan’s witness statement dated 28 May 2019. This Appeal Tribunal adopts the same references to T1 and T2.
Mr Dhawan has appealed against the decision of the Original Tribunal. In response, Dr Jamiel has sought that the appeal be dismissed, and has lodged a cross-appeal based on what he contends were errors of fact and law made by the Original Tribunal. He also made a claim for interest on the amount owed to him by Mr Dhawan.
To understand the basis of the appeal and cross-appeal it is appropriate to outline the history of the proceedings, in particular:
(a)the original civil dispute application made by Dr Jamiel and Mr Dhawan’s response and counterclaim, and Dr Jamiel’s revised application; and
(b)the findings and orders made by the Original Tribunal.
This Appeal Tribunal will then consider the appeal and cross-appeal in the context of the role of an appeal Tribunal when dealing with an appeal as a review of the original decision,[1] and the way in which the appeal hearing was conducted.

The original claim by Dr Jamiel

[1] See ACT Civil and Administrative Tribunal Act 2008 section 82(b)

On 1 November 2018, Dr Jamiel lodged with the Tribunal a civil dispute application in which he sought $24,500 for what he claimed was the cost of damage caused by Mr Dhawan to Dr Jamiel’s property during the construction of Mr Dhawan’s house on the neighbouring land. In particular, the claim was for the cost of replacing synthetic grass in an area identified as T1 and for broken tiles on Dr Jamiel’s driveway, adjacent to Mr Dhawan’s property.
The amount claimed was calculated by reference to a quote of $49,269.46 from Unique Landscapes for repairs. Dr Jamiel rounded the amount down to $49,000 and contended that Mr Dhawan (who he referred to as Mr Chanda) had agreed to pay half that sum, that is, $24,500.
Dr Jamiel also sought the Tribunal filing fee of $559, making the total amount claimed by him $25,059. He did not seek interest on the amount claimed as damages.

Mr Dhawan’s response and counterclaim

On 18 February 2019, Mr Dhawan lodged his response to the civil dispute application in which he set out a timeline of the dispute and stated, “I fully disagree to pay the claim of $45,059 to the applicant.” In his counterclaim, Mr Dhawan claimed from Dr Jamiel half the cost incurred by Mr Dhawan for building a retaining wall ($2,420), the cost of relocating Dr Jamiel’s hedging plants on Mr Dhawan’s property ($690) and the cost of removing algae pipes ($350). In total, Mr Dhawan claimed from Dr Jamiel the sum of $3,450 (with interest to be determined by the Tribunal) together with the Tribunal filing fee of $156. The amount of his claim was $3,606.

What the Original Tribunal decided

The Original Tribunal heard the claim and counterclaim on 12 June 2019. Dr Jamiel and Mr Dhawan appeared in person. Neither party was legally represented.
At the hearing, Dr Jamiel no longer relied on the quote from Unique Landscapes for $49,269.46 for 613m² of synthetic grass and driveway tile replacement. He amended his claim and relied on quotations by Optimal Synthetic Lawns dated 12 June 2019 for $15,048 to remediate the synthetic grass (Exhibit 1) and ACT Gardening & Landscaping dated 19 April 2019 for $30,000 for the remediation of the synthetic grass ($24,600) and remediation of the driveway tiles ($5,400).
Dr Jamiel and Mr Dhawan each gave oral evidence and was questioned by the other. Oral evidence was also given by Mr Mahmoud Al-Smadi, landscaper, ACT Gardening & Landscaping and by Mr Benjamin Jones-Gerholt, the owner of Optimal Synthetic Lawns. Documents, including photographs, were tendered in evidence. Each party made oral submissions.
The Original Tribunal advised the parties that the decision was reserved, and that they would be notified when the decision would be delivered orally.[2] After the hearing concluded, each party provided written submissions and other material, the implications of which are considered later in these reasons for decision.[3]
[2] Transcript of proceedings12 June 2019 pages 130-131
[3] See paragraphs [33] to [38]
On 23 September 2019, the Original Tribunal delivered detailed oral reasons summarising the applicable law and the facts, including the evidence of the witnesses. The Original Tribunal set out detailed findings in relation to Mr Dhawan’s liability for damage to Dr Jamiel’s property and found that there was insufficient evidence to support the counterclaims by Mr Dhawan.[4]
[4] Transcript of oral reasons for decision 23 September 2019 page 12
The Original Tribunal assessed the amounts of damages payable item by item, allowing deductions for the state of the surface damaged and the contributory negligence of Dr Jamiel.
Having given detailed reasons for her findings, the Original Tribunal ordered Mr Dhawan to pay Dr Jamiel the sum of $7,066 by close of business on 25 October 2019 in full satisfaction of all claims by Dr Jamiel being:
(a)$2,187 for rectification of T1;
(b)$4,320 for rectification of the driveway; and
(c)$559 for the Tribunal filing fee.
The Original Tribunal dismissed Mr Dhawan’s counterclaim.

Mr Dhawan’s appeal – an overview

In his appeal, Mr Dhawan raised eight errors of law and fact. He also alleged false statements had been made by a number of witnesses upon whose evidence the Original Tribunal relied. We have treated Mr Dhawan’s allegations regarding those witnesses as a further error of fact. Mr Dhawan also sought to adduce further evidence in the form of online quotations for tiles.
On 23 December 2019, Mr Dhawan filed a further appeal application, described as an amended application for appeal. He sought amended orders and to adduce further evidence in the form of a video clip taken on 15 November 2019.
Mr Dhawan sought orders to the following effect from the Appeal Tribunal:
(a)The order of the Original Tribunal be set aside.
(b)The following orders be substituted:
(i)Mr Dhawan pay compensation to Dr Jamiel for an amount not exceeding $1,202 (which is one third of the total cost to replace affected synthetic grass);
(ii)no compensation be paid for damage to tiles;
(iii)Dr Jamiel pay Mr Dhawan $3,606 for his crossclaim.
(c)Dr Jamiel’s cross-appeal (AA 36/2019) be dismissed.
(d)Dr Jamiel pay Mr Dhawan the sum of $572.50 being the cost of the Tribunal filing fee for Mr Dhawan’s application for appeal.
He confirmed this during the hearing of the appeal. Mr Dhawan also asked the Appeal Tribunal to stay the orders made by the Original Tribunal.[5]
Ground 1
[5] For reasons given at the conclusion of the hearing of the appeal, the Appeal Tribunal declined to stay the orders of the Original Tribunal.
Broadly, Mr Dhawan claimed the Original Tribunal’s finding that any damage to the portion of Dr Jamiel’s driveway, which was on unleased Territory Land (the verge area) constituted an error of law in so far as he had been ordered to pay for 53 tiles, 22 of which are located in the verge area.
Grounds 2 – 8
Grounds 2 – 8 were characterised by Mr Dhawan as errors of fact. In general terms they concern the Original Tribunal’s alleged failure to consider certain matters raised by Mr Dhawan and with which Mr Dhawan disagrees. The grounds are as follows:
(a)The Original Tribunal failed to consider the manner in which Dr Jamiel used the driveway, damage caused by a weather event in November 2015 and previous rectification worked carried out by a contractor engaged by Mr Dhawan (Ground 2).
(b)The Original Tribunal failed to consider video 5 on a USB provided to the Original Tribunal by Mr Dhawan on 3 July 2019[6] (Ground 3).
(c)The Original Tribunal erred by rejecting Mr Dhawan’s quote from Joseph Tiling (Tiler) for $2,300 as it was the least cost to replace the driveway tiles (Ground 4).
(d)The Original Tribunal erred in finding a snake repeller was damaged in T1 (Ground 5).
(e)The Original Tribunal failed to consider video 2 submitted on a USB provided to the Original Tribunal by Mr Dhawan on 3 July 2019[7] regarding the condition of the driveway tiles (Ground 6).
(f)The Original Tribunal failed to consider Mr Dhawan’s photographic evidence of the rectification work carried out by contractors on his behalf in respect of the synthetic grass (Ground 7).
(g)The Original Tribunal overstated the amount required to rectify the driveway tiles and should have calculated the amount as $1,260 (Ground 8).
Allegations of false statements
[6] This was after the Original Tribunal reserved its decision, but purportedly in accordance with orders made on 12 June 2019.
[7] This was after the Original Tribunal reserved its decision, but purportedly in accordance with orders made on 12 June 2019.
Mr Dhawan identified several references to oral evidence in the transcript of the Original Tribunal’s decision which he described as false. He considered the statements referred to by the Original Tribunal in its reasons were wrong.

Dr Jamiel’s cross-appeal – an overview

Dr Jamiel raised two errors in his cross-appeal. In summary, they are:
(a)The Original Tribunal erred in its application and assessment of depreciation.
(b)The Original Tribunal erred in finding 20% contributory negligence on Dr Jamiel’s part in relation to the damage.
He made a new claim for interest to be applied from November 2015 on the amount to be awarded to him.
Dr Jamiel seeks orders to the following effect from the Appeal Tribunal:
(a)The appeal by Mr Dhawan be dismissed.
(b)The order of the Original Tribunal be set aside.
(c)The following orders be substituted.
(i) Mr Dhawan is to pay Dr Jamiel the cost of replacing the affected synthetic grass and the affected driveway tiles up to $25,000.
(ii) Mr Dhawan is to pay Dr Jamiel the sum of $559 being the cost of the Tribunal filing fee for his original application in XD 1519/2018.
(d)Mr Dhawan is to pay Dr Jamiel the sum of $575.50 being the cost of the Tribunal filing fee for his application for appeal.
(e)Mr Dhawan is to pay Dr Jamiel interest on the daily rate of the sum awarded from the date of the damage in November 2015 until the present.
Dr Jamiel also sought to adduce further evidence in the form of an invoice from ACT Gardening & Landscaping dated 26 January 2020.

The appeal hearing and the role of an appeal Tribunal

In accordance with directions made by a Presidential Member of the Tribunal on 22 November 2019 and 12 December 2019, the appeal and the cross-appeal were listed for hearing on the same day and on the basis that the hearing would proceed as a review of the original decision[8] unless the Appeal Tribunal ordered otherwise. That way of dealing with the appeal and cross-appeal can be contrasted with dealing with them as new applications,[9] or hearings de novo.
[8] See ACT Civil and Administrative Tribunal Act 2008 section 82(b)
[9] See ACT Civil and Administrative Tribunal Act 2008 section 82(a)
The Appeal Tribunal decided the appeal by reference to the evidence before the Original Tribunal. Leave was not given to the parties to adduce additional evidence at the appeal stage. In support of that decision we note that, in Amer v Eriksson,[10] the Tribunal held:
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”[11] and is a “remedial”[12] 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,[13] and the public interest of finality in litigation.[14] 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[15] and the new evidence would, or was likely to, have produced a different result.[16]
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.[17]
[10] Amer v Eriksson [2019] ACAT 108
[11] CDJ v VAJ [1998] HCA 67 at [111]
[12] August v Commissioner of Taxation [2013] FCAFC 85 at [119]
[13] Leighton v The Queen [2017] ACTCA 55 at [29]
[14] Mulholland v Mitchell [1971] AC 666
[15] Jovanovic v R [2015] ACTCA 29 at [22]
[16] August v Commissioner of Taxation [2013] FCAFC 85 at [119]
[17] Jovanovic v R [2015] ACTCA 29 at [22]
In relation to his request to rely upon pricing for outdoor tiles in his appeal, Mr Dhawan acknowledged the information could have been made available to the Original Tribunal and that the Original Tribunal had before it evidence of such pricing. He intended to use the fresh material to supplement the earlier evidence. In light of that acknowledgement, the Appeal Tribunal did not admit the additional pricing into evidence as it was unlikely to produce a different result, particularly given that pricing evidence provided by Mr Dhawan had been before the Original Tribunal. For similar reasons, the Appeal Tribunal did not admit into evidence the additional video Mr Dhawan sought to rely upon as it was taken after the Original Tribunal’s decision and was intended to support an argument as to the extent of rectification work Dr Jamiel had carried out himself. This was of no probative effect in relation to the issues raised in Mr Dhawan’s appeal.
Dr Jamiel also sought to rely upon an invoice for work, paid by him, to remedy part of the damage. This was also rejected by the Appeal Tribunal. Having regard to the grounds of his cross-appeal, whatever amount Dr Jamiel actually paid, subsequent to the Original Tribunal’s decision, to partially remedy the damage had no bearing on whether the Original Tribunal erred in the amounts awarded.

Material before the Original Tribunal and the Appeal Tribunal

During the hearing of the appeal and cross-appeal questions were asked about what material the Appeal Tribunal would consider in making its decision. The issue arises because, after the completion of the hearing before the Original Tribunal, Mr Dhawan sent to the Tribunal registry various photographs and video recordings as well as other correspondence. Dr Jamiel objected to that practice.
Usually a party or parties to proceedings before the Tribunal would not provide additional evidence after the conclusion of the hearing. The reasons why it would be inappropriate to do so include the fact that the other party or parties would not have the opportunity to test that evidence, and the need to have finality in proceedings.
The proceedings before the Original Tribunal were slightly unusual in this respect. The Original Tribunal made orders which were sent to the parties some days after the hearing had concluded. The orders were to the effect that the Original Tribunal’s decision was reserved, and each party had to file and serve any final submissions by a nominated date.
The orders concluded:
The Tribunal notes:
Neither party can raise new issues, any further and final submissions of the parties are not mandatory, and they are only to provide further explanation or evidence about issues already raised.
It is clear that in addition to making written submissions, Mr Dhawan provided a series of photographs and some short videos in relation to the matters in dispute. It is also apparent from its reasons for decision that the Original Tribunal had regard to the video material.
On that basis, the Appeal Tribunal has had regard to the transcript of the proceedings before the Original Tribunal on 12 June 2019, the documents marked as exhibits in the course of that hearing, the written submissions made by the parties after the hearing and the photographs and video which accompanied those submissions.

Consideration of Mr Dhawan’s appeal

Liability for the driveway (Ground 1)

The Original Tribunal held that because an action in nuisance applied to land, nuisance in this case cannot apply to any damage claimed by Dr Jamiel on the verge area because he does not own the verge area. The net effect, Mr Dhawan argued, was that because 22 damaged tiles were located on the driveway in the verge area the cost of replacing them should be excluded from any award for damages. Dr Jamiel argued that the tiles located on the entirety of the driveway, including the verge, were his responsibility to maintain.
At the hearing, neither party could provide any further guidance regarding responsibility for the section of driveway located on the verge. Section 26 of the ACT Civil andAdministrative Tribunal Act 2008 (the ACAT Act) states:
26 Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
Note 1 to that section states that the Tribunal must observe natural justice and procedural fairness (see section 7 of the ACAT Act).

For these reasons the Appeal Tribunal undertook its own research over the adjournment and found a Driveway Approval Factsheet published by Transport Canberra City Services, being the ACT Government Directorate responsible for driveways. A copy of the Factsheet was provided to each party.
Relevantly, the Factsheet stated:
Design and construction of all new or modified driveways, including relocated driveways, is the responsibility of the lessee. All costs associated with the design and construction work will be the responsibility of the lessee.
For damage to the area located on the verge, the Original Tribunal awarded a total amount of $5,400 for the replacement of 53 driveway tiles, discounted to $4,320 to account for its finding of 20% contributory negligence on Dr Jamiel’s part. Subject to our findings below regarding the 20% contributory negligence, the Appeal Tribunal is not satisfied the Original Tribunal’s award of damages for 53 tiles was in error.
Did the Original Tribunal fail to consider evidence? – Grounds 2, 3, 6 and 7
Mr Dhawan submitted that a photograph taken by him in or around April/May 2017[18] depicted satisfactory rectification work to T1 and did not show any damaged tiles (ground 2). He made the same submission in relation to ground 7. He also submitted that the frequency with which he observed various tradespeople and utilities using the driveway would cause damage and this had not been taken into account by the Original Tribunal. Mr Dhawan did not call any witnesses to give oral evidence.
[18] Mr Dhawan’s response and counterclaim dated 15 February 2019, page 12
Dr Jamiel submitted that two of his witnesses, Mr Mahmoud Al-Smadi and Mr Benjamin Palmer Jones-Gerholt, gave evidence before the Original Tribunal regarding the damage to the synthetic grass and the inadequacy of the repair work carried out on Mr Dhawan’s behalf. Mr Dhawan characterised that oral evidence as “false statements” (a contention which is addressed below).[19] Dr Jamiel also submitted that the tiles were broken in a lineal direction consistent with the direction of water flow from Mr Dhawan’s property and the resultant erosion beneath the synthetic grass and to the concrete.
[19] See paragraphs [63] to [76]
The photograph relied upon by Mr Dhawan does not depict with any precision the detail asserted by him. He did not call any witnesses to corroborate the condition of the synthetic grass. On that point, Mr Dhawan submitted that “Peter”, the tradesperson he engaged to carry out the rectification work, was not available to give evidence before the Original Tribunal due to personal reasons. The Original Tribunal was left in the position of hearing oral evidence from two experts as to the condition of the synthetic grass after Mr Dhawan’s attempt at rectification and give an opinion as to the cause of the damage against Mr Dhawan’s photograph. The Original Tribunal did not fail to consider Mr Dhawan’s evidence, it simply preferred the other oral evidence.
The Appeal Tribunal is satisfied, in those circumstances, that it was open to the Original Tribunal to conclude Mr Dhawan failed to rectify the damage and to prefer the oral evidence given by Mr Al-Smadi and Mr Jones-Gerholt.
Mr Dhawan submitted that the Original Tribunal failed to consider videos submitted on a USB on 3 July 2019 (grounds 3 and 6) because the Original Tribunal requested a copy of the USB from Mr Dhawan on 19 September 2019 as it had been misplaced. He submitted the Original Tribunal could not have considered it because it was requested too close to the time the decision was handed down.
For several reasons, the Appeal Tribunal is satisfied the Original Tribunal considered the USB. First, the Original Tribunal referred to the video in its reasons and to what Mr Dhawan says on the video. Secondly, the proximity of the request to the delivery of the decision does not equate to, and is not evidence of, a failure on the Original Tribunal’s part to consider the material. As stated, the Original Tribunal specifically referred to the video.[20]
[20] Transcript of oral reasons for decision 23 September 2019 page 12, lines 6-11
The errors in grounds 2, 3, 6 and 7 of Mr Dhawan’s appeal are not made out.
Was the Original Tribunal wrong to reject the quote from Joseph Tiling? (Ground 4)
The Original Tribunal held that 53 tiles on the driveway were damaged, so too the under-surface. It ordered Mr Dhawan to pay $4,320 which was the amount derived after deducting 20% for Dr Jamiel’s contributory negligence. In arriving at that amount, the Original Tribunal considered that the quote submitted by Dr Jamiel from ACT Gardening & Landscaping for $5,400 accurately reflected the cost of repairing the driveway.
Mr Dhawan disagrees and submitted the Original Tribunal should have preferred a quote submitted by him from Joseph Tiling for $2,300 as it “was the least cost to repair 50 tiles”.[21]
[21] Mr Dhawan’s application for appeal dated 21 October 2019, page 4
Dr Jamiel submitted the Original Tribunal was correct to reject the Joseph Tiling quote as it did not include the cost of repairing the under-surface of the driveway.
Having found that Mr Dhawan caused damage to the under-surface of the driveway and tiles, it was open to the Original Tribunal to award any amount it considered appropriate to remedy that damage. The only probative material available which reflected the cost associated with its findings was that from ACT Gardening & Landscaping. The Appeal Tribunal does not consider the Original Tribunal erred in relying upon the ACT Gardening & Landscaping quote, nor that it was obliged to award a lesser amount.
The error in ground 4 is not made out.
Did the Original Tribunal find that Mr Dhawan caused damage to snake repellers on Dr Jamiel’s property? (Ground 5)
Mr Dhawan submitted the Original Tribunal made an error of fact regarding damage to a snake repeller when it made the following statement in its reasons:
The Tribunal finds that Mr Dhawan did cause damage to Mr Jamiel’s driveway. The photos showing the damage done to the under-surface of the grass in T1 also indicate the force and volume of debris that flowed that would have then flowed into or on to the driveway. The force of the flow in that major weather event in late 2005 was such that it knocked over a snake repeller in T1, and it actually took debris as far away as a road some distance from both properties. The tribunal accepts that Mr Dhawan did not fix this issue immediately. Indeed, until he built the retaining wall in late 2016. A year later, Mr Dhawan argued that he could fix the situation until the hedge…”[22]
[22] Transcript of oral reasons for decision 23 September 2019 page 11, lines 39-47
The Appeal Tribunal disagrees with Mr Dhawan’s characterisation of the Original Tribunal’s statement. Further, Dr Jamiel did not claim for damage to the snake repeller and the Original Tribunal made no such award for damage.
The Original Tribunal did no more than identify that the force of water flow from a weather event damaged a snake repeller in the T1 area and because of such force and damage it was reasonable to conclude that Dr Jamiel’s driveway (including the under-surface) was damaged due to the force and volume of debris that flowed from Mr Dhawan’s property.
The error in ground 5 is not made out.
Did the Original Tribunal erroneously characterise the ACT Gardening & Landscaping quote? (Ground 8)
For this ground of appeal, Mr Dhawan sought leave to rely upon the additional online outdoor tile quotes filed with his appeal. For reasons stated above, the Appeal Tribunal did not grant leave. Despite the Appeal Tribunal’s rejection of the additional evidence, as far as it can be ascertained, Mr Dhawan took issue with the amount the Original Tribunal awarded for the damage to the driveway and made his own calculation given that the Unique Landscapes quote for $900 was for labour only. This was in the alternative to his primary argument that he was not liable for the damaged driveway at all.
Dr Jamiel submitted, in summary, that Mr Dhawan’s calculation as to the cost of repair carried less weight than the quotation provided by qualified tradespeople.
The Appeal Tribunal does not consider the Original Tribunal made any error of fact as set out in Ground 8. For reasons already stated above, having found that Mr Dhawan caused damage to the under-surface of the driveway and tiles, it was open to the Original Tribunal to award any amount it considered appropriate to remedy that damage. The only probative material available which reflected the cost associated with its findings was that from ACT Gardening & Landscaping. The Appeal Tribunal does not consider it necessary or appropriate to adopt Mr Dhawan’s calculation and further does not consider the Original Tribunal erred in relying upon the ACT Gardening & Landscaping quote.
Alleged false statements
Mr Dhawan alleged that the Original Tribunal’s reasons relied upon several specified “false statements” made by Dr Jamiel, Mr Al-Smadi and Mr Jones-Gerholt. He submitted the statements identified in his appeal were wrong and comprised statements those witnesses could not have made as they were not present at the time the damage occurred.
For the reasons that follow, the Appeal Tribunal considers Mr Dhawan’s allegations are not made out and his allegations are misconceived. Mr Dhawan claimed the witnesses said things that were not true. A fair reading of the transcript of the hearing on 12 June 2019 reveals that Mr Dhawan disagreed with the statements made by the witnesses and the Original Tribunal’s reliance upon them. This can be contrasted with a witness giving false evidence. The latter is a serious allegation. Nonetheless, he maintained that witnesses could not have observed something because they either were not there or that which they said they saw was not there.
It is important to note that findings of fact based on the Original Tribunal’s opinion as to the credibility of witnesses may only be reversed on appeal in exceptional cases and there must be incontrovertible evidence pointing decisively to error on the part of the Original Tribunal in relying upon its impression of the witnesses.[23]
[23] See: Fox v Percy (2003) 214 CLR 118
To properly consider Mr Dhawan’s allegation, the Appeal Tribunal reviewed the transcript of the hearing on 12 June 2019, including Mr Dhawan’s cross-examination of the relevant witnesses, in order to determine the correctness of the statements referred to by the Original Tribunal and its reliance upon them.
Mr Dhawan claimed the Original Tribunal relied upon false statements made by Dr Jamiel in relation to:
(a)Dr Jamiel’s estimate of the height of a pile of debris located on Mr Dhawan’s property[24];
(b)an exchange Dr Jamiel had with workmen engaged by Mr Dhawan to rectify the damage wherein he asked the workmen to stop and they did not, continuing to cut up the synthetic grass[25]; and
(c)the workman engaged by Mr Dhawan failing to rectify the damage to the synthetic grass. [26]
[24] Transcript of oral reasons for decision 23 September 2019, page 3, lines 45-47
[25] Transcript of oral reasons for decision 23 September 2019, page 5, lines 16-18
[26] Transcript of oral reasons for decision 23 September 2019, page 5, lines 22-23
The first is readily dispensed with. Dr Jamiel gave a lay opinion as to the estimated height of the pile by reference to his 6m fence. He was entitled to do so. Mr Dhawan disagreed with the estimated height because the pile was rock not dirt. He did not cross-examine Dr Jamiel in relation to his estimated height of the pile. Nor did he put to Dr Jamiel that he was wrong. An opinion of this kind is not akin to a false statement. The Original Tribunal accepted the method used by Dr Jamiel to estimate the height of the pile. [27]
[27] Transcript of proceedings 12 June 2019, pages 108, lines 6-36
In relation to the second alleged false statement, Mr Dhawan asked Dr Jamiel in cross-examination whether he told the workers to ‘stop’ and Dr Jamiel confirmed that he did. It was not put to Dr Jamiel that he did not tell the workers to ‘stop’. Rather, Mr Dhawan asked Dr Jamiel why he asked the workers to stop. Dr Jamiel explained the workers began cutting into the synthetic grass and he told them to ‘stop’ because it was unacceptable and not done properly.[28] Mr Dhawan’s allegation is not made out.
[28] Transcript of proceedings 12 June 2019, pages 90-91
The final alleged false statement attributed to Dr Jamiel relates to his claim that the workmen engaged by Mr Dhawan failed to rectify the damaged synthetic grass. The Appeal Tribunal does not consider there is anything false about the statement. Mr Dhawan disagreed and considered cleaning work had been done, which was sufficient. The Original Tribunal accepted Dr Jamiel’s evidence regarding the condition of the synthetic grass after Mr Dhawan’s tradespeople had been on site. The statement made by the Original Tribunal does nothing more than summarise Dr Jamiel’s claim, with which it ultimately agreed.
It is apparent from the transcript that Mr Al-Smadi gave evidence of his own observations on site and compared those with photographs he had been shown. He was accepted as an expert witness. He gave an opinion that the piles of sand and gravel he saw on site at Mr Dhawan’s property were similar to those he had seen in photographs and that this would explain how Dr Jamiel’s synthetic grass and driveway were damaged. Mr Al-Smadi also gave evidence as to cuts he saw in the synthetic grass in two areas and broken and wobbly tiles.[29] Mr Dhawan cross-examined Mr Al-Smadi in relation to these aspects of his evidence. Mr Dhawan plainly disagrees with Mr Al-Smadi. He made that known to the Original Tribunal.[30] The fact that Mr Dhawan disagrees with Mr Al-Smadi’s evidence does not make it a false statement. It was open to the Original Tribunal to accept Mr Al-Smadi’s opinion as an expert, particularly where he was cross-examined by Mr Dhawan and Mr Dhawan had no contradictory witnesses.
[29] Transcript of proceedings 12 June 2019, pages 60-63
[30] Transcript of proceedings 12 June 2019, page, 62, lines 8-13
The allegation regarding Mr Jones-Gerholt’s evidence is difficult to understand. Mr Dhawan claims the following statement in the Original Tribunal’s reasons constitutes a false statement:
…Gerholt prepared the quote to Mr Jamiel, in his oral evidence he [Mr Jones-Gerholt] stated there was other damaged areas which he [Mr Jones-Gerholt] indicated accounted for the discrepancy and said that he [Mr Jones-Gerholt] had not inspected the other areas when he [Mr Jones-Gerholt] did the quote for Mr Dhawan, simply quoted for T1 as per Mr Dhawan’s instructions.[31]
[31] Transcript of oral reasons for decision 23 September 2019, pages 14-18
The Appeal Tribunal considers it is best explained as follows.
Mr Jones-Gerholt provided two quotes for remediation of the synthetic grass. He provided one to Mr Dhawan at Mr Dhawan’s instruction and a separate one to Dr Jamiel at his request. The difference between the two quotes is such that Mr Dhawan instructed Mr Jones-Gerholt, by telephone, to provide a quote for a specific triangular area adjacent to his driveway which was quoted by Mr Jones-Gerholt as being 52 square metres. Dr Jamiel’s quote included a larger area in which damage to the synthetic grass had occurred,[32] based on instructions given to him by Dr Jamiel as to the extent of the affected area.
[32] Transcript of proceedings 12 June 2019, pages 72-73
Mr Dhawan took issue with the second quote being substantially more, relative to the additional size of the area and cross-examined Mr Jones-Gerholt for an explanation. While Mr Jones-Gerholt stated he did not know what or who caused the damage to the synthetic grass he stated it was obvious it had been cut up, ‘butchered’ and patched up.[33] He explained that there was an additional labour cost associated with the additional area due to the shape of the driveway and the joints required. He further explained that the rolls of synthetic grass were four metres wide resulting in some wastage when placed in situ.[34]
[33] Transcript of proceedings 12 June 2019, pages 73, lines 10-15
[34] Transcript of proceedings 12 June 2019, pages 75-76
Mr Dhawan did not cross-examine Mr Jones-Gerholt in relation to the instructions he gave to him or those given by Dr Jamiel. In light of these circumstances there is no basis to support Mr Dhawan’s allegation that Mr Jones- Gerholt made a false statement. The Appeal Tribunal considers the Original Tribunal accurately summarised the statement above by reference to the evidence Mr Jones-Gerholt gave.
Mr Dhawan’s counterclaim before the Original Tribunal
Although it was not raised as a discrete ground of appeal, Mr Dhawan sought orders before the Appeal Tribunal allowing his counterclaim. If successful, he claimed the amount of $3,606 from Dr Jamiel comprising half the cost of the retaining wall, cost of relocating plants, cost of removing pipes and the ACAT filing fee. The Original Tribunal rejected the counterclaim on the basis that there was insufficient evidence to support it. In the absence of any receipts from Mr Dhawan, the Original Tribunal preferred the evidence of Dr Jamiel that he paid for and moved the hedge. It also rejected the claim for the retaining wall as it was not clear it was on the boundary, and it found there was insufficient evidence the pipe was on Mr Dhawan’s land or installed by Dr Jamiel.
Mr Dhawan submitted that the Original Tribunal was wrong to reject his counterclaim because he had provided photographs of the work done. The Original Tribunal had these photographs before it and considered it insufficient to support Mr Dhawan’s counterclaim. The Appeal Tribunal is in no better position. The position adopted by the Original Tribunal was correct having regard to the evidentiary deficiencies. The Appeal Tribunal concurs with that view and sees no basis to disturb the Original Tribunal’s findings.

Conclusion – Mr Dhawan’s appeal

For the reasons set out above, the Appeal Tribunal does not consider that Mr Dhawan has established any of the errors of law and fact asserted in his appeal, nor that any of the statements referred to by him were false.
Mr Dhawan’s appeal is dismissed.

Consideration of Dr Jamiel’s cross-appeal

Did the Original Tribunal err in its application and assessment of deprecation?

The Original Tribunal applied depreciation at the rate of 20% in relation to the cost of rectifying the synthetic grass in T1 and T2. Dr Jamiel submitted the Original Tribunal erred in this regard by failing to apply any depreciation to the original cost of installing the synthetic grass rather than the replacement cost.
A fair reading of the Original Tribunal’s reasons suggests that it was applying a discount for fair wear and tear of the synthetic grass because it was not brand new at the time the damage occurred, and a ‘like-for-like’ cost of replacement was more appropriate. The Appeal Tribunal considers it was open to the Original Tribunal to award any amount it considered appropriate to remedy the damage. While it need not have been characterised as ‘depreciation’, the Appeal Tribunal considers the intention to apply a discount to the cost of rectification is sufficiently clear. The Appeal Tribunal does not consider that the Original Tribunal was in error.

Did the Original Tribunal err in attributing 20% contributory negligence to Dr Jamiel?

Dr Jamiel submitted the Original Tribunal erred in attributing 20% contributory negligence to him. He considered the only reason the synthetic grass and driveway needed rectifying was due to the debris from Mr Dhawan’s property, not due to his neglect of the sump.
The Original Tribunal held that Dr Jamiel had not taken precautions to guard against the natural flow of water in light of the earlier weather event and water flow, which preceded Mr Dhawan’s purchase of the site, and his lack of maintenance of the sump.

While the Original Tribunal characterised this as contributory negligence, the Appeal Tribunal considers it more akin to a failure to mitigate on Dr Jamiel’s part. Regardless, the difference is immaterial and a discount in respect of any award for damages can be applied. The Original Tribunal did so. With the knowledge of the natural flow, Dr Jamiel could have taken some preventative action which might have mitigated the extent of damage later caused by Mr Dhawan. He did not do so. The finding in support of a reduction in the amount awarded to Dr Jamiel was open to the Original Tribunal on the evidence before it.
Based on the evidence before the Original Tribunal and the findings made, there is no basis for the Appeal Tribunal to find differently. The Appeal Tribunal does not consider the Original Tribunal erred in making such a finding.
Is Dr Jamiel able to claim interest on appeal?
Dr Jamiel expressly capped the total amount claimed to $25,000 which is the Tribunal’s jurisdictional limit. His claim for interest is raised for the first time in his cross-appeal.
Section 18 of the ACAT Act provides that a civil dispute application cannot be made to the Tribunal for an amount greater than $25,000 unless:
(a)a person would be entitled to make an application claiming an amount greater than $25,000 in a court of competent jurisdiction and the person abandons the excess by limiting the claim to $25,000;[35] or
(b)the parties agree to the application for an amount greater than $25,000 being decided by the Tribunal, and the Tribunal is satisfied that the parties understand that the amount of the claim in excess of $25,000 is not being abandoned.[36]
[35] ACT Civil and Administrative Tribunal Act 2008 section 20
[36] ACT Civil and Administrative Tribunal Act 2008 section 21
The $25,000 is not an absolute. Some additional amounts of particular types might be claimed and awarded. Relevantly for these proceedings:
(a)the Tribunal has ruled in two separate decisions, Verma & Anor v Reynolds[37] and Powley & Anor v Reynolds[38] that an application claiming $25,000 as well as a filing fee is a valid application which falls within the Tribunal’s jurisdiction; and
(b)section 19(1)(a) of the ACAT Act provides that, in working out the amount claimed in order to decide whether the Tribunal has jurisdiction in relation to a civil dispute application, a claim for interest is to be disregarded.
[37] [2018] ACAT 89
[38] [2018] ACAT 103
As the Original Tribunal noted, Dr Jamiel did not claim interest in his civil dispute application. He explained to the Appeal Tribunal that he decided not to claim interest originally because he considered it was above the jurisdictional limit of $25,000. He wanted to now claim interest from November 2015 in light of the deductions the Original Tribunal made regarding depreciation and contributory negligence which left him substantially more out of pocket.
Generally, a party is not entitled to raise a new matter on appeal except in the clearest case and for the most cogent reasons.[39] In Whisprun Pty Ltd v Dixon[40], the High Court held:
…as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal.[41]
[39] Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231, 241 per Barwick CJ
[40] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73
[41] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon [2003] HCA 48 at [51]-[52]
The ACAT Act is sufficiently clear in relation to a claim for interest being excluded from $25,000. The Appeal Tribunal is satisfied that a claim for interest could have been included in Dr Jamiel’s claim before the Original Tribunal and a forensic decision was made not to include it. The decision to exclude it from the claim appears to have been founded upon Dr Jamiel’s mistaken belief that it was included in the jurisdictional limit. He apparently did not take steps to ascertain the correctness of his understanding. Further, having failed to obtain the full amount of his claim before the Original Tribunal, Dr Jamiel now seeks to supplement the award with interest. There is no compelling explanation for raising it in the cross-appeal, and it would not be in the interests of justice to allow it.

Conclusion – Dr Jamiel’s appeal

For the reasons set out above, the Appeal Tribunal does not consider Dr Jamiel has established the grounds in the cross-appeal and there is no justification to permit the fresh claim for interest.
Dr Jamiel’s appeal is dismissed.

Orders

The result of these findings is that the Original Tribunal’s orders are confirmed, and Mr Dhawan is required to pay Dr Jamiel the amount of $7,066.
The Appeal Tribunal makes the following orders:
(a)In Appeal AA32/2019 (Mr Dhawan’s appeal):
(i)      The appeal is dismissed;
(ii)     Mr Dhawan is to pay to Dr Jamiel the amount of $7,066 within 28 days of this order; and
(b)In Appeal AA36/2019 (Dr Jamiel’s appeal):
(i)      The appeal is dismissed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	AA 32/2019. AA 36/2019
PARTIES, APPELLANT/RESPONDENT	Yarub Jamiel
PARTIES, APPELLANT/RESPONDENT	Chander Parkash Dhawan
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	President G Neate AM, Senior Member K Katavic
DATES OF HEARING:	12 February 2020