Excel Intelligent Pty Ltd v Thomson
[2018] ACAT 4
•15 January 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EXCEL INTELLIGENT PTY LTD v THOMSON (Appeal) [2018] ACAT 4
AA 13/2017 (XD 433/2016)
Catchwords: APPEAL – civil dispute – Australian Consumer Law – components of a garage purchased online from appellant – purchaser advised by person assembling the product that it was flimsy and not structurally sound – Original Tribunal held that purchased product was not of acceptable quality as a garage – appeal – appeal conducted as a review of the decision of the Original Tribunal, with some additional engineering evidence provided by the appellant – role of Appeal Tribunal on a review or rehearing
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 73, 82
Australian Consumer Law s 54Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 21
Cases cited:Allesch v Maunz (2000) 203 CLR 172
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 291
Chakravarty & Commissioner ACT Revenue [2013] ACAT 1
Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389
Coal and Allied Operations Pty Limited v AustralianIndustrial Relations Commission (2000) 203 CLR 194
Connelly v Allen [2011] ACTSC 170
Das v A&A Air-conditioning [2009] ACAT 52
Federow v Federow [2011] ACTCA 10
Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Hamers-Coogan v Commissioner for Social Housing in the ACT [2011] ACAT 31
John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50
Lukatela v Birch [2008] ACTSC 99
Sarbandi v Sharif [2017] ACAT 57
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21
Tribunal: President G Neate AM
Member G WrightDate of Orders: 15 January 2018
Date of Reasons for Decision: 15 January 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 13/2017
BETWEEN:
EXCEL INTELLIGENT PTY LTD
Appellant
AND:
JEAN THOMSON
Respondent
TRIBUNAL:President G Neate AM
Member G Wright
DATE:15 January 2018
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
2.Within 28 days from the date of this order, Excel Intelligent Pty Ltd pay Jean Thomson $3,037.30, comprised of:
(a)$1,799.00 by way of refund of the purchase price;
(b)$199.00 by way of refund of the freight charge for the subject goods;
(c)$140.30 for Ms Thomson’s costs of delivering the subject goods from the delivery depot to her address;
(d)$750.00 for Mr Arizapa’s costs of assembling and dismantling the structure;
(e)$140.00 for the filing fee; and
(f)$9.00 for the search fee.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.Excel Intelligent Pty Ltd (Excel/the appellant) appeals against a decision of a presidential member of the ACT Civil and Administrative Tribunal (the Original Tribunal) ordering the appellant to pay Jean Thomson (Ms Thomson/the respondent) the sum of $3,037.30. That sum comprised:
(a)the refund of the purchase price of what was advertised as a “Large Steel Garden Shed ... Workshop Storage Garage” and a “large heavy duty garage workshop” that Ms Thomson bought online from Excel (the purchased product); and
(b)other costs incurred by Ms Thomson in relation to her purchase and the proceedings before the Original Tribunal.
2.Excel has applied for the original orders to be set aside, and for Excel to be reimbursed the amount of the fee that it paid to bring this appeal.
Decision of the Original Tribunal
3.At the first hearing, Ms Thomson claimed that Excel advertised a garage, sold its product to her as a garage, and that it was not suitable for use as a garage. It was of flimsy construction and likely to collapse in a storm or strong wind or if hit by a car when reversing out of the structure. The door frame was not fit for purpose because it was too low to walk through.[1]
[1] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [42]
4.The Original Tribunal heard oral evidence from Salvador Arizapa (the licensed owner of Infinite Roofing and Home Maintenance Pty Ltd) who was involved in the partial construction of the garage, and Ivan Dikmans, the Branch Manager with Herzog Steel Pty Ltd (with whom he had worked for 14 years).
5.Mr Arizapa had commenced to assemble the purchased product but had advised Ms Thomson that it was not suitable to be used as a work shed, certainly not as a garage, and was “flimsy” and “not heavy duty.” Mr Arizapa’s oral evidence was that he had assembled the frame, inspected the panels and was confident all the components necessary to assemble the structure had been provided. In particular, Mr Arizapa:
(a)considered the structure not suitable to be used as a workshed or garage and referred to a support bar across the floor at the front of the shed that a car would immediately squash or flatten upon driving across and explained that he had installed many metal sheds and garages in the course of conducting his business and had never seen or installed a garage with a bar across the floor of its entrance;[2]
(b)said that the components of the frame could be “bent easily by an adult” and expressed his concern to Ms Thomson that it “could have easily collapsed” in a storm or strong winds because of its large size and flimsy construction;[3]
(c)said that the purchased product was not structurally sound;[4]
(d)said that the screws supplied by Excel were not of sufficient length to secure the panels to the frame and that, in a strong wind, the panels would just “slide off”;[5]
(e)gave evidence that the structure was not a garage but was “just a big garden shed”;[6]
(f)said that the side door with a height of 1600mm was not a suitable height for a work shed or garage.[7]
[2] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [10]
[3] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [11]
[4] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [11]
[5] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [12]
[6] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [13]
[7] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [14]
6.Mr Dikmans gave evidence that:
(a)the structural components for the purchased product were not consistent with the structural components described in the letter from structural engineers or the certificate of compliance (described in [7]), for example in relation to the base metal thickness of the frame which was 46 x 46 x 1.15 bmt instead of 80 x 40 x 0.75 bmt, 60 x 40 x 1.5 bmt or 80 x 40 x 1.5 bmt as specified by the two engineering companies consulted by Excel;[8]
(b)the shed panels of the purchased product were “paper thin” and the structure was not strong enough to be used as a shed or a garage;[9] and
(c)the structure shown to him was not what was described in the engineering documents.[10]
[8] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [19]
[9] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [21]
[10] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [22]
7.Excel did not call any witnesses, but relied on the following documents:[11]
(a)a letter dated 16 December 2016 from Martin Gamble, the managing director of Gamcorp (Melbourne) Pty Ltd (Gamcorp), structural engineers, in which Mr Gamble stated that his company had carried out a design check of Excel’s carport and shed products and assessed the main and secondary structural components to be “satisfactory” based on the product information provided by Excel;[12]
(b)a certificate of compliance from Knight Consulting Engineers Pty Ltd (Knight Consulting) to the effect that the steel structures as depicted in the drawings forming part of the certificate were, in substance, structurally sound.[13]
[11] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [53]
[12] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [16]
[13] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [17]
8.At the hearing before the Original Tribunal, Tim Gu, the marketing manager of Excel:
(a)called into question the credibility of Mr Arizapa, arguing that he should have seen and felt the materials of the purchased product whilst checking the parts and should not have continued to construct the structure, and that he had not read and followed the instructions;[14]
(b)relied on a contention that “heavy duty” is not a term used in the classification of steel in Australia (even though the advertisement for the garage included “Heavy duty, structural sound, watertight proof materials” under “Specifications”);[15]
(c)relied on Mr Gamble’s letter and the certificate of compliance from Knight Consulting to contend that if the components described in those documents were acceptable and satisfactory, then the components supplied to Ms Thomson must be “more acceptable” because those components are better than the components described in the documents;[16]
(d)submitted that the framing structures with dimensions 46 x 46 x 1.15 bmt were “thicker” than those described in the certificate of compliance and must therefore be satisfactory;[17]
(e)submitted that the Tribunal should conclude that the purchased product could not be blown away by wind;[18]
(f)submitted that a personal access door 1600mm high is adequate.[19]
[14] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [31]
[15] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [32]
[16] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [34]
[17] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [35]
[18] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [36]
[19] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [37]
At that hearing, Excel accepted that its product was and is intended for use as a garage, and that it was marketed and sold for use as a garage.[20]
[20] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [49], [50]
9.The Original Tribunal characterised the issue as whether Ms Thomson had established on the balance of probabilities that the structure was not of acceptable quality, having regard to the matters set out in section 54(3) of the Australian Consumer Law (the ACL).[21]Ms Thomson contended that Excel was in breach of the guarantee that goods are of acceptable quality because the structure was not “fit for all the purposes for which goods of that kind are commonly supplied” (ACL section 54(2)(a)).
[21] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [46]
10.Having considered the evidence and submissions, the Original Tribunal concluded, in summary, that:
(a)from the advertisement, a reasonable consumer would have understood that the product would be fit for all the purposes of a garage;[22]
(b)Excel was in breach of its guarantee under section 54 of the ACL that the structure, sold as a garage, be of acceptable quality;[23]
(c)the insufficient strength of the frame and its defective design for use as a garage could not be remedied (both were inherent failures of the product) and Ms Thomson had rejected the goods before the rejection period had ended.[24]
[22] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [48]
[23] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [61]
[24] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [62]-[67]
11.Consequently, the Original Tribunal made the following orders on 29 March 2017:
1. Within 28 days from the date of this order, the respondent pay the applicant $3,037.30, comprised of:
(a)$1,799 by way of refund of the purchase price;
(b)$199 by way of refund of the freight charge for the subject goods;
(c)$140.30 for the applicant’s costs of delivering the subject goods from the delivery depot to the applicant’s address;
(d)$750 for Mr Arizapa’s costs of assembling and dismantling the structure;
(e)$140 for the filing fee; and
(f)$9 for the search fee.
The appeal
12.On 24 April 2017, Excel filed in the Tribunal’s registry its application for appeal. The reasons for appeal are:
1.Opinions given by the witness is incorrect. ie: ‘A car driving over it [the pole] can flatten it’, ‘can be easily bent by an adult’
Ms. Thomson has yet to provide us a copy of her council permit to construct the Garage
2.We would like to bring a certified engineer to give his statement and quantifiable evidence about the matter and product.
Furthermore, we would also like to provide evidence of the pole being run over by a car.
3.Since this case heavily relies on expert opinions and the current opinions does not depict the true nature of the situation, we would like a chance for an Australian Certified engineer to give statement and clear up the facts so that a decision based on the best facts, and not just opinions, so that a more informed and just decision can be made. (Errors in original)
13.Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the tribunal.
14.The significance of that distinction for this appeal is discussed later in these reasons for decision (see [50] to [55])
15.Subject to one modification, the appeal proceeded as a review of the decision of the Original Tribunal.[25] The only modification was that, by orders dated 2 May 2017, the appellant was granted leave to produce the following additional evidence:
(a)a report of a registered engineer in relation to the purchased product; and
(b)photographs of a motor vehicle on top of a component of a steel frame.
[25] ACAT Act section 82(b)
16.Other orders were made to the effect that the appellant was to provide a transcript of the hearing to the respondent and the Tribunal registry, and was to file and serve the additional material and submissions setting out facts and contentions relied on in support of the appeal. The respondent was also directed to file and serve submissions in response setting out the facts and contentions relied on by her. By the time of the hearing, each party had received all the documents referred to in the orders, although not by the dates or in the sequence set out in those orders.
17.At the hearing of the appeal, Mr Gu appeared on behalf of the appellant. Ms Thomson appeared on her own behalf.
Evidence on appeal
18.The appellant relied on:
(a)a written statement and oral evidence of Edmond Wong, a civil engineer who graduated from Monash University in 2000 and has had experience in Australia and overseas as a structural engineer, including for a shed project supplier (Stramit Building Products); and
(b)four sheets of photographs showing the wheels of a motor vehicle on top of a hollow steel pole (which was longer than the distance between those wheels).
19.Mr Gu informed the Appeal Tribunal that, although Excel no longer sells the purchased product (because stock is updated every year and a different version is sold now), the company keeps some parts at hand, including frames and wall panels. He stated that Excel provided Mr Wong with parts from the same batch as the purchased product.
20.According to Mr Wong’s written statement, he:
(a)had seen the hollow tube section framing, sheeting for the walls and roof and a pack of the bolts, screws and fasteners for the garage that Ms Thomson obtained; and
(b)based his opinion on the following material supplied to him before he saw the garage parts in person: drawings from ‘Spanbuilt’ (FTWS-01 to FTWS-06) by Knight Consulting, and calculations for the 60mm x 40 mm x 1.5mm tube provided by Gamcorp.
21.Mr Wong’s written statement included the following:
Based on my comparison of the materials used and the structural composition, I can confidently guess that using the materials supplied to Mrs. Thompson, is adequate for a Class 10a Garage, and you will be able to park your car inside. I say this because of the following:
- Knights Consulting would have done models and computation on the structure they had certified and satisfied that it would be acceptable in the details conditions on that document.
- In regards to the 60mm x 40mm x 1.5mm and 50mm x 50mm x 1.5mm, the different properties of these 2 sections, although not the exact same, are so similar that they would be interchangeable.
- The increased number of frames in Mrs. Thompson’s garage compared to Knight Consulting is almost over engineered in my opinion.
- The steel sheets used, are ribbed in one direction, so it is acceptable for them to flex this way. It will be rigid when force is applied perpendicular or from the top of the sheet once secured, provided that they are 0.32mm thick.
- The screws provided would be adequate but only under certain wind loads. Which brings me back to my previous statement that a building permit for the specific site is very important. (Emphasis added, errors in original)
22.In his oral evidence about the suitability of the product sold to Ms Thomson. Mr Wong repeated and expanded upon aspects of his written evidence.
23.Mr Wong said that he had been provided with a 46mm x 46mm x 1.15mm tube. Although he had not seen the purchased product, he understood that what Excel had provided to him was from the same stock. Mr Wong gave evidence that the product had a different profile from the 50mm x 50mm x 1.5mm referred to. When asked about his evidence about the dimensions of the hollow steel poles, Mr Wong reiterated that the different sizes are interchangeable. “We’ve always swapped 50 x 50 and 40 x 60 to suit for the different structure but they’re the same, I mean the (indistinct) properties for the things.”[26]
[26] Transcript of proceedings page 8
24.Although it was 4mm less in width, the tube sample sent to Mr Wong had a groove in it (like a top hat section) with extra strength in the middle of the tube, and an attachment on the top to make it stronger. The pattern on the 46mm tube was to strengthen it. Mr Wong seems to have both assumed and concluded that the 40mm x 60mm, 50mm x 50mm and 46mm x 46mm poles were all sufficiently strong for this purpose.[27]
[27] Transcript of proceedings page 10
25.According to Mr Wong, a “lot of local design structure” have three frames for the same sized shed as Ms Thomson purchased. Her shed had five frames. “That’s why I made the assumption that this is more than adequate to support the same size shed you sell to your customer.”[28] He seemed to suggest (and expressly assumed) that a design with five frames can use less material and accommodate bending movement for the whole structure.[29]
[28] Transcript of proceedings page 8
[29] Transcript of proceedings page 10
26.He agreed that the product was a sound structure based on the frame, and that it was suitable to house a vehicle.[30] In his opinion, “This is a steel garage, a portable steel garage and if they construct [it] right and if the build is right, of course, then this is no doubt these are garages”.[31]
[30] Transcript of proceedings page 8
[31] Transcript of proceedings page 8
27.Three other aspects of Mr Wong’s evidence merit mention because they were discussed at length by the parties at the hearing of the appeal, although they do not affect the outcome of this appeal.
28.First, there was some focus at the hearing on the adequacy of the height of the side door to the purchased product. Ms Thomson referred to evidence before the Original Tribunal of Mr Arizapa that the door was 1.6m high, and the evidence of Mr Dikmans that the door was 1.72 metres high. Ms Thomson stated that her current garage and previous garage doors were two metres high. In her submission, the door should have been at least 1.9 metres high (being what she understood to be the usual Australian door height) or 2.04 metres high (to accord with what she said is a disability standard for height for accessible path of travel). However, Ms Thomson acknowledged that there is no Australian standard for doors in structures such as the purchased product.
29.According to Mr Wong, there is no Australian standard requirement that doors to steel portable buildings be of a specified height. Furthermore, he observed that 90% or more of the garden sheds, workshops and other comparable steel portable buildings sold at Bunning’s stores have doors 1.7 metres high or a little lower. He stated that if a customer wishes to have a door that is 2.1 metres high they can request it but would have to pay extra for it.[32]
[32] Transcript of proceedings pages 14-16
30.Ms Thomson also indicated during the course of the appeal hearing (apparently for the first time in these proceedings) that she suffers from a disability that affects her ability to use a door of about 1.7 metres in height. In response, Mr Gu stated that Excel was not informed that Ms Thomson required disability access. Had she mentioned it, the company representative would have advised her that it could not provide what she required.
31.On the basis of the evidence before it (and in the absence of evidence about any design requirements), the Original Tribunal concluded that a side door that is 1.6 metres high is not “adequate”.[33]
[33] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [57]
32.Apart from the agreement of the parties that there is no binding Australian standard in respect of the height of doors for steel portable buildings, this Appeal Tribunal has only the observation made by Mr Wong about what might be usual door sizes of garden sheds and the like that are sold at Bunnings. That evidence was imprecise and no documented basis for it was provided to the Appeal Tribunal. We have no way of assessing whether it was accurate. We note, however that his evidence was not about the usual height of doors to garages, but he agreed that 1.7 metres is “a bit low”.[34]
[34] Transcript of proceedings pages 14, 15
33.More significantly, Ms Thomson was unable to say whether, at the time she purchased the product, she was aware of the size of the side door. Indeed, she informed the Appeal Tribunal that there was no reference to the height of the door in the advertisement for what you purchased. Consequently, to the extent that she thought about it at all, it appears that she purchased the product with a misplaced expectation about the door size. There is no evidence to show that she was misled in relation to the door size of the product she purchased. Although she was apparently disappointed about the size of the door on the purchased product, there is no evidence to show that she indicated to Excel that she required a door of approximately two metres in height or that Excel represented to her that the purchased product had a door of that size.
34.Consequently, on all the evidence before the Appeal Tribunal, the issue between the parties about the size of the door of the purchase product will not influence the outcome of this appeal.
35.Second, Mr Wong made much of the fact that no evidence had been provided to him or Excel about whether building approval had been given for the construction of the garage and, if so, the conditions imposed on that approval. He suggested that, had he been provided with the information, he might have been able to make a more informed technical assessment as to whether the purchased product met the local building requirements.
36.Ms Thomson stated repeatedly during the appeal hearing that the purchased product was intended to replace a larger garage which had previously been constructed on the site, and that the purchased garage was to be erected on a cement slab. As the structure to be constructed was a Class 10A building, a building permit was not required. She had contacted the ACT Planning and Land Authority about the matter. The applicable conditions included conditions in relation to buildings not more than three metres above the ground. Furthermore, her builder was licensed and appropriately qualified.
37.On the evidence before the Original Tribunal and this Appeal Tribunal, we are satisfied that Ms Thomson did not require permission to build a garage of the type she proposed on the cement slab located where the previous garage stood. The fact that, as a consequence, no building specifications or conditions were made available to Excel for the purpose of these proceedings has no impact on whether the product provided to Ms Thomson by Excel was of acceptable quality for use as a garage.
38.Third, there was some discussion about the practical utility of double-sided waterproof tape that was meant to be provided with the purchased product. Mr Wong gave evidence that different approaches are taken to sealing such steel portable buildings along the intersection of the top of a wall and the roof. Some people use the waterproof tape, while others use silicon or both silicon and the tape. Although the tape on its own might provide some protection, the combination of silicon and the tape would appear to provide most protection.
39.We are satisfied that the waterproof tape should have been provided to Ms Thomson as part of the overall product. There is some dispute whether the tape was provided. In light of Mr Wong’s evidence, and a general assessment of the proportionality of the absence of waterproof tape (or even its provision) to the overall utility of the product purchased, the presence or absence of the tape does not affect the outcome of this appeal.
Submissions of the parties
40.The appellant’s case (as put in the reasons for appeal, the brief written submission, and orally by Mr Gu) is that the orders made by the Original Tribunal were incorrect because they were based on incorrect evidence given by witnesses called by Ms Thomson. Excel submitted those witnesses lacked relevant qualifications and licences (or, at least, their qualifications were not in evidence before the Original Tribunal). Although those witnesses might be experienced, that alone does not mean that they are correct. Their evidence provided the basis for anecdotal arguments. There were some differences between the evidence of Mr Arizapa and Mr Dikmans about the height of the door, which suggested that Mr Arizapa had done an eyeball estimate which was unreliable, while Mr Dikmans seems to have measured the door.
41.By contrast, it was submitted, the expert evidence of a qualified structural engineer is more likely to be correct. Mr Wong is such a person. He could interpret the information in a different, more professional and unbiased manner. His was not new evidence, but evidence by which evidence before the Original Tribunal could be interpreted and expert opinions could be clarified.
42.Ms Thomson submitted, in summary that:
(a)Mr Wong’s evidence was not based on a physical assessment of the components of the purchased product, but was based on documentation from Gamcorp and Knight Consulting and a comparison of components with different dimensions to those provided in the purchased product;
(b)by contrast, Mr Arizapa and Mr Dikmans had either reviewed the site, worked with, assessed or measured the components and made statements regarding the unsuitability of the structure based on personal experience.
43.Ms Thomson also made submissions about the height of the side door, the absence of a requirement for a building permit to erect a garage, and the suitability of double-sided tape. Those issues are dealt with earlier in these reasons for decision and it is not necessary to review her submissions in relation to them.
44.The key issue between the parties in this appeal concerned the relative qualifications of the witnesses to give expert evidence to the Original Tribunal and this Appeal Tribunal. The appellant relied heavily on the evidence Mr Wong on the basis that he had civil engineering qualification and extensive relevant experience. The appellant sought to reduce the weight given to the witnesses called by Ms Thomson by reference to their qualifications and experience as compared with the engineering qualifications of Mr Wong.
45.In reply, Ms Thomson acknowledged that she could not say that Mr Arizapa is a qualified builder, but she considered him qualified enough to build a garage and relied on his evidence. The evidence before the Original Tribunal was that Mr Arizapa is the licensed owner of Infinite Roofing and Home Maintenance and is a qualified roofer with six years experience in construction. In that context he was engaged by Ms Thomson to install the new garage. We proceed on that basis when assessing the weight to be given to his evidence.
The role of an appeal Tribunal
46.Before considering those submissions, it is appropriate to set out the role of an Appeal Tribunal in relation to the review of the decision of the Original Tribunal, and the legal principles that guide this Appeal Tribunal.
47.First, section 79(3) of the ACAT Act provides that a party to an original application may, by application, appeal the decision to the Tribunal “on a question of fact or law.” Although the distinction between a question of fact and a question of law is significant, a satisfactory test of universal application has not been formulated.[35]
[35] Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389, 394. See also John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50 at [15], [16] (Burns J)
48.As differently constituted Tribunals have observed in previous cases, an appellant does not have standing to appeal as of right and is required to identify question of fact or law. The appellant cannot merely request the re-exercise of a discretion.[36] The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that were so there would be no point in the original hearing.[37]
[36] Chakravarty & Commissioner ACT Revenue [2013] ACAT 1 at [36]
[37] Das v A&A Air-conditioning [2009] ACAT 52 at [19]
49.The reasons for the present appeal are set out in the application for appeal and are quoted at [12]. It appears from the way they are worded, those reasons identify what are most accurately described as questions of fact.
50.Second, in Giusida Pty Limited v Commissioner for ACT Revenue[38](Giusida), Refshauge ACJ considered the principles on which the Tribunal on appeal should act. His Honour repeated his observations in an earlier judgement that an appeal under section 82(a) of the ACAT Act is what is usually called a “hearing de novo” and an appeal under section 82(b) is what is usually called a “rehearing”.[39] In the earlier judgment, his Honour also observed that the Tribunal had held that, on a review under section 82(b), the Appeal Tribunal may receive additional evidence.[40] Although there is no express power to that effect in the ACAT Act, Rule 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) does so provide.
[38] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
[39] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36], [37], quoting The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [13]-[14]
[40] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [61] citing Hamers-Coogan v Commissioner for Social Housing in the ACT [2011] ACAT 31 at [10]
51.In the subsequent case of B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324,[41] Burns J heard an appeal which was dealt with as a review of the original decision of the Tribunal. His Honour described the nature of the appeal based on the fact that all relevant evidence was received by the Tribunal, and no question of the credibility of the witnesses called in the Tribunal arose. The appeal before him largely concerned issues of statutory interpretation, and the parties approached the appeal as a rehearing rather than a hearing de novo.[42]
[41] B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 291
[42] B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and theOwners – Units Plan 3324 [2013] ACTSC 291 at [13]
52.Burns J noted that the nature of a rehearing is well known. He quoted the following passage from the judgment of the majority of the High Court in Fox v Percy:[43]
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. ...
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derived from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
[43] Fox v Percy (2003) 214 CLR 118 at [22]-[23], (Gleeson CJ, Gummow and Kirby JJ); see also Federow v Federow [2011] ACTCA 10 at [7]-[9], Gray P, Penfold J, Nield AJ
53.Burns J cited and quoted from other judgments about the nature of a rehearing. The following propositions can be drawn from those judgments:
(a)An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.[44]
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below[45] (or an original tribunal).
(c)The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.[46]
(d)The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).[47]
(e)In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[48]
[44] Connelly v Allen [2011] ACTSC 170 at [12], Refshauge J
[45] Lukatela v Birch [2008] ACTSC 99 at [22], Rares J citing Coal and Allied Operations Pty Limited v AustralianIndustrial Relations Commission (2000) 203 CLR 194, 203 at [14], Gleeson CJ, Gaudron and Hayne JJ
[46] Connelly v Allen [2011] ACTSC 170 at [12], Refshauge J. See also Sarbandi v Sharif [2017] ACAT 57 at [67]-[71]
[47] Connelly v Allen [2011] ACTSC 170 at [13], Refshauge J
[48] Allesch v Maunz (2000) 203 CLR 172, 180-1 at [23], 187 [44]; Lukatela v Birch [2008] ACTSC 99 at [18], [21], Rares J
54.In Giusida, Refshauge J appeared to draw no distinction between the two types of appeal when he observed, in relation to the role of an appeal Tribunal, that:
the very structure of the ACAT would suggest that what is required is a proper review of the decision at first instance before the cost to the parties of having to take the proceedings to this [Supreme] Court is required to be incurred.[49]
[49] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]
55.He continued:
... careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and general power is intended and not one which restricts the original decisions from proper scrutiny.
Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. ...
A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.[50]
Consideration and conclusion
[50] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [37]-[40]
56.In deciding this appeal, we have had regard to the reasons for decision of the Original Tribunal and the evidence on which that Tribunal relied, as well as the written and oral evidence of Mr Wong in the course of the appeal hearing and the submissions of the parties to the Appeal Tribunal.
57.As noted earlier, Excel submitted that the case relies heavily on expert opinions and that the opinion of the certified engineer would “clear up the facts … so that a more informed and just decision can be made.” Mr Gu contended that Mr Wong was better qualified to express an opinion than Mr Arizapa or Mr Dikmans.[51] That submission might have had greater force if the case turned on whether a substantial structure of particular dimensions or materials was adequate to withstand particular or demanding conditions, such as high winds or heavy loads. But that is not the issue in this case. The issue is whether the components of the purchased product, when assembled in accordance with the instructions, were of acceptable quality (or fit for use) as a garage, as advertised and marketed.
[51] Transcript of proceedings pages 29-30
58.There was evidence from experienced tradesmen about the nature of the components of the purchased product and their suitability for use in a garage. A person who assembled the purchased product did not have to be a qualified builder, nor an engineer. That point is well illustrated by the following exchange between Mr Gu and Ms Thomson at the hearing before the Appeal Tribunal.
MR GU:So, to the best of your knowledge, you do not know that Mr Arisapa (sic) is a qualified builder?
MS THOMSON: No, I don’t, but I would imagine he’s qualified enough to build a garage.
MR GU: Qualified enough. Okay.
MS THOMSON: Well, people can do it themselves. You don’t require qualifications to build a garage or a shed that I’m aware of.
MR GU:Correct. I do also believe that one needs to possess certain skills to safely construct any structure of any size.[52]
[52] Transcript of proceedings page 29
59.However, Mr Gu criticised the professionalism of the person who constructed Ms Thomson’s garage and suggested that the person was negligent, by not checking that all parts were there before starting construction and not being present to supervise construction on the first day.[53] We note that Mr Arizapa expressly refuted that suggestion.
[53] Transcript of proceedings page 25
60.We also note that the Original Tribunal rejected Mr Gu’s submission that Mr Arizapa was not a credible witness and stated:
56. ...Mr Arizapa gave clear and straightforward evidence explaining why the shed was flimsy and not safe to use as a work shed or garage. I accept his evidence. It is illogical that Mr Arizapa would advise the applicant that the shed was not safe or durable to be used as a garage and advise her to dismantle it, if that advice was not true and where that advice placed the applicant in the predicament of having purchased a shed that she then could not use for its intended purpose.
61.The following passage from the decision of the Original Tribunal is significant having regard to the way in which Excel’s case on appeal was put and Ms Thomson responded to it.
54. ... The Tribunal must proceed on evidence. If the structure sold to the applicant was fit for purpose as a garage, it should have been relatively straightforward for the respondent to call a witness with sufficient expertise or experience to say so, and why. The fact that some engineering documents describe the structural components of a different structure as “satisfactory” is beside the point. A witness with sufficient engineering experience might have been able to say that if the components described in Mr Gamble’s letter and the certificate of compliance from Knight Consulting are satisfactory then so should be the components of the structure sold to the applicant, and why that was so, but no such witness was called.
55.Indeed the only comparative evidence on the matter was given by Mr Dikmans, who said that he could make no comment about the structural integrity of the components described in Mr Gamble’s letter and the certificate of compliance from Knight Consulting; that they were different from the components sold to the applicant, and that the components sold to the applicant were not suitable for use as a garage.
62.Apparently in response to those statements, and with leave of the Appeal Tribunal, Excel adduced evidence from Mr Wong. The question for the Appeal Tribunal is what weight to give to that evidence.
63.Mr Wong had not seen the purchased product, only the samples sent to him by Excel.[54] Mr Gu said that “the measurements which Ms Thomson has provided and the profile which she was provided of the tubes was the exact same one, to the best of my knowledge, that was provided to Mr Wong as well”.[55] Mr Gu said that he believed that the parts sent to Mr Wong were from the “same batch that Ms Thomson’s shed came from”.[56]
[54] Transcript of proceedings pages 18-19
[55] Transcript of proceedings page 22
[56] Transcript of proceedings page 27
64.Excel relied, in part, on photographs showing the rear wheels of a motor vehicle in an apparently stationary position on a hollow square metal tube. Having considered the shape and pattern on the side of the hollow tube in the photographs, Mr Wong said dimensions of that tube were “by my eyes” the same as the tube provided to him and, he was told, the same type as provided to Ms Thomson.[57] However, he agreed that there was no evidence that the bar in the photographs was the same as the bar in the purchased product.[58] Mr Wong did not assess the metal bar by driving a car over it. Rather he relied on a third-party engineer testing it,[59] and he used engineers’ software to check the material sent to him.[60] He said “I trust the testing lab”.[61] That was not sufficient to refute the evidence given by Mr Arizapa (summarised at [5](a)).
[57] Transcript of proceedings pages 20-22
[58] Transcript of proceedings pages 12, 13
[59] Transcript of proceedings page 12
[60] Transcript of proceedings pages 11, 13
[61] Transcript of proceedings page 13
65.Mr Wong agreed that his written statement was based on an assumption that Ms Thomson received the same materials that he assessed.[62]
[62] Transcript of proceedings page 11
66.Mr Wong noted that the poles used in the purchased product had different dimensions from the normal 50mm x 50mm poles. However, he said that, because of a particular feature of the purchased product poles (variously described as a flange and reverse top hat), he “made the assumption” about the flange and “I think the strength on that can replace the 50 x 50. That’s what I’m saying. I’m not saying that they’re equal but because they’ve got the extra pole (indistinct) that’s why they’ve got extra strength. That’s why I made the assumption that they can use it as a 50 x 50”.[63] He also made “the assumption that the little flange in the middle of the steel chip … will make at least 25 or 30 more strength on the steel chip.” He also said that a “chip” was tested using software to enable calculations to be made about any bend in the rod. Again he made the assumption that Ms Thomson had received the same materials.[64]
[63] Transcript of proceedings page 18
[64] Transcript of proceedings pages 18-19
67.It is apparent from those extracts from his evidence (and other parts of it) that Mr Wong did not test the purchased product, that he made certain assumptions, and that he expressed opinions based on tests conducted by others on similar components as well as components with different dimensions. In its own terms, Mr Wong’s evidence was not a complete answer to the evidence before the Original Tribunal. Rather, it was put to show that some components of a garage with the same or different dimensions as the purchased product would, or should, be of acceptable quality.
68.The evidence before the Original Tribunal was that the purchased product was not fit for the purpose of a garage. Having considered all the evidence before it, the Original Tribunal concluded that the purchased product was not of acceptable quality and hence Excel was in breach of its guarantee under section 54 of the ACL.[65] It also concluded that the insufficient strength of the frame and defective design for use as a garage could not be remedied. Both were inherent failures of the product.[66]
[65] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [61]
[66] Thomson v Excel Intelligent Pty Ltd [2017] ACAT 21 at [64]
69.The additional evidence adduced by Excel was not evidence in relation to the purchased product. It was evidence about the type of garage Ms Thomson ordered. Neither Mr Gu nor Mr Wong have inspected the purchased product. They might be surprised or sceptical about the description of the purchased product. But the Original Tribunal accepted the direct evidence of Mr Arizapa and Mr Dikmans, which supported the observations made by Ms Thomson about the physical properties of the purchased product.
70.In rehearing this matter, we have made our own assessment of the evidence before the Original Tribunal, while recognising the advantage that that Tribunal had in hearing from, and being able to assist the credibility of, witnesses who gave evidence in the original proceedings. Consequently, we would not lightly overturn findings of fact based on the assessment of those witnesses.
71.The additional evidence before the Appeal Tribunal is plausible but not persuasive. It does not provide the basis for setting aside the findings of the Original Tribunal.
72.Having considered the evidence and submissions of the parties, we are not satisfied that the Original Tribunal made a finding of fact that was clearly wrong or exercised a discretion on a wrong principle or in a way that was clearly wrong.
73.It follows from those conclusions that the appeal must be dismissed and, consequently, the orders made by the Original Tribunal must stand.
Orders
74.For the reasons given above, the Appeal Tribunal orders that:
1.The appeal is dismissed.
2.Within 28 days from the date of this order, Excel Intelligent Pty Ltd pay Jean Thomson $3,037.30, comprised of:
(a) $1,799.00 by way of refund of the purchase price;
(b) $199.00 by way of refund of the freight charge for the subject goods;
(c) $140.30 for Ms Thomson’s costs of delivering the subject goods from the delivery depot to her address;
(d) $750.00 for Mr Arizapa’s costs of assembling and dismantling the structure;
(e) $140.00 for the filing fee; and
(f) $9.00 for the search fee.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AA 13/2017
PARTIES, APPLICANT:
Excel Intelligent Pty Ltd
PARTIES, RESPONDENT:
Jean Thomson
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
Member G Wright
DATES OF HEARING:
30 June 2017
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