Fyshwick Automotive Pty Ltd v Bretherton
[2019] ACAT 36
•22 March 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FYSHWICK AUTOMOTIVE PTY LTD v BRETHERTON (Appeal) [2019] ACAT 36
AA 52/2018 (XD 526/2018)
Catchwords: APPEAL – civil dispute – installation of aftermarket car wheels – subsequent failure of two of the wheels on separate occasions – findings of original tribunal against the evidence and the weight of the evidence – appeal allowed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 48, 79
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules (No 2) 2009 r 21
Cases cited:Lukatela v Birch [2008] ACTSC 172
Mansour v Dangar [2017] ACAT 49
Puri v Iconic Markets and Events Pty Ltd [2019] ACAT 28
Tribunal: Presidential Member E Symons
Date of Orders: 22 March 2019
Date of Reasons for Decision: 22 March 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 52/2018
BETWEEN:
FYSHWICK AUTOMOTIVE PTY LTD
Appellant
AND:
ALAN MICHAEL BRETHERTON
Respondent
TRIBUNAL: Presidential Member E Symons
DATE:22 March 2019
ORDER
The Tribunal orders that the decision under review is set aside and substituted with the following orders:
1.The application filed on 4 May 2018 is dismissed.
2.The respondent pay to the appellant the filing fee of $1,118 within 28 days.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Introduction
1.Fyshwick Automotive Pty Ltd trading as Goodyear Autocare Fyshwick (Fyshwick Auto or the appellant) supplied, fitted, aligned and balanced four aftermarket wheels and tyres to a Ford Ranger motor vehicle registration number CC48QK (the vehicle), owned by Alan Michael Bretherton (Mr Bretherton or the respondent) on 7 February 2018. The vehicle had an odometer reading of 28,833 kilometres. Mr Bretherton paid $1,415 for the wheels and $2,386 for their installation.
2.On 12 February 2018 the vehicle’s rear left wheel failed.
3.On 14 February 2018 Fyshwick Auto replaced the rear left wheel and returned the vehicle to Mr Bretherton. Mr Bretherton paid $492 for the repair.
4.On 24 February 2018 John McGrath Ford carried out a 30,000 kilometre/2 year service for the vehicle. The vehicle’s odometer reading was 30,403 kilometres. Mr Bretherton paid $509.60 for this service.
5.On 17 March 2018 the vehicle’s front right wheel failed. The vehicle’s odometer reading was approximately 31,219 kilometres.
6.On 19 March 2018 Mr Bretherton sent a letter of demand to Fyshwick Auto.
7.On 21 March 2018 John McGrath Ford inspected the vehicle’s wheels. Mr Bretherton paid $140.80 for the inspection.
8.On 23 March 2018 Mr Bretherton sent a second letter of demand to Fyshwick Auto claiming $10,000 and offering a non-disclosure agreement with the offer to be accepted within 5 days.
9.On 26 March 2018 Fyshwick Auto replied to Mr Bretherton’s letter and denied liability.
10.On 30 March 2018 Mr Bretherton sent a third letter of demand to Fyshwick Auto.
11.On or about 5 April 2018[1] John McGrath Ford carried out repairs to the vehicle. Mr Bretherton paid $1,031.80 for the repairs.
The original tribunal proceedings
[1] John McGrath Ford Service Tax Invoice FMFGH85368 dated 16 April 2018
12.On 4 May 2018 Mr Bretherton initiated proceedings in the ACT Civil and Administrative Tribunal (the tribunal) claiming $6,975.80. His claim was that Fyshwick Auto should be ordered to pay the monies claimed because their installation of the new wheels on 7 February 2018 was the cause of the problems he encountered. Mr Bretherton annexed a bundle of documents to his application which included: copies of the correspondence between the parties; invoices from Beaurepaires, Goodyear Autocare Fyshwick, and John McGrath Ford; a letter from the NRMA dated 12 April 2018; and Uber and Avis receipts.
13.Fyshwick Auto filed a response on 24 May 2018 admitting that it had sold and installed the four aftermarket wheels selected by Mr Bretherton and that it carried out repairs to the vehicle on or about 14 February 2018 at the request of Mr Bretherton. It denied that anything done by it or left undone on 7 February 2018 caused the damage which it repaired on 14 February 2018. It further denied that anything done by it or left undone on 7 or 14 February 2018 caused any subsequent damage to the vehicle, the wheels, or the tyres fitted to the vehicle.
14.Mr Bretherton filed a statement of events dated 24 July 2018 and supporting documentation, which included images of the vehicle’s rear left wheel on 12 February 2018 and statements by himself and his wife, Ms S K Wilson, with the tribunal on 1 August 2018. He also filed a statement signed by Mr Joe Madaffari from John McGrath Ford setting out the vehicle’s service history with them and annexing copies of various invoices, including the invoice for the 30,000 km service invoice on 24 February 2018, the 22 March 2018 invoice and the 16 April 2018 invoice for repairs to the right-hand front wheel.
15.Mr Troy Bolton, a director of Fyshwick Auto, filed a statement on 28 August 2018.
16.On 19 September 2018 a Senior Member of the tribunal (the Original Tribunal) heard evidence and submissions from Mr Bretherton, and evidence from Mr Madaffari and Mr Fresi (who had been employed by John McGrath Ford at the relevant time) and from Mr Bolton, and received documents into evidence. At the commencement of the hearing, Mr Bretherton had revised his claim to $3,482.81, being: $492.03 for the 12 February 2018 repairs by Fyshwick Auto; $135 each for the two NRMA tows; $42.03 and $46.81 for Uber transport; $140.80 for the 21 March 2018 John McGrath Ford repairs; $1,044.96 for a hire car and $105.58 for fuel; $1,031.80 for additional John McGrath Ford repairs; $150 for the tribunal filing fee; and $67 for the search fee. He also claimed interest of $91.83 from 2 May 2018 to 9 November 2018.
17.The Original Tribunal reserved its decision.
The decision of the Original Tribunal
18.On 9 November 2018 the Original Tribunal delivered oral reasons and ordered that Fyshwick Auto pay the sum of $3,345.84 to Mr Bretherton and that the decision, including the reasons for decision, be referred to the Commissioner and Regulator for Fair Trading and the Commissioner and Regulator for the Work, Health and Safety Act 2011 due to Fyshwick Auto providing unprofessional service resulting in an unsafe situation for Mr Bretherton and his wife when driving the vehicle.
19.The Original Tribunal stated that the issues for determination were as follows:
the main issue that arose in this case at the hearing was whether the problems with the vehicle’s wheels that occurred on 12 February 2018 and 17 March 2018 were caused by [Fyshwick Auto’s] breach of statutory [warranty] for services. Those statutory warranties that were allegedly breached was [sic] that there was a lack of due care and diligence and that the wheels were not fit for purpose under the Australian Consumer Law. The services at issue were the installing of the wheels on 7 February 2018 and the repair that [Fyshwick Auto] undertook on 12 February 2018.[2]
…
Causation was the main issue for the tribunal to consider. It was relevant to the question of whether [Fyshwick Auto] failed to meet the statutory guarantees for its service of the applicant’s vehicle and also if the loss or damage was suffered because of any failure to comply.[3]
[2] Transcript of proceedings 9 November 2018 page 4, lines 25-32
[3] Transcript of proceedings 9 November 2018 page 5, lines 4-7
20.Having considered the oral and written evidence and the submissions made by the parties, the Original Tribunal made a series of findings set out below. (In these reasons for decision, the Appeal Tribunal refers, below, to the applicant at first instance as ‘Mr Bretherton’ and to the respondent at first instance as ‘Fyshwick Auto’.)
(a)There was a level of unreliability in Mr Bolton’s evidence about relevant facts: he was inaccurate when he stated the business employed six mechanics in his written statement when, in his oral evidence, he stated that his business employed five and his partner had another trade.
(b)Mr Bolton’s evidence was vague in relation to the removal of the nuts and studs on 12 February 2018. Fyshwick Auto claimed the nuts and studs showed evidence of tampering when it inspected the vehicle in the workshop on 12 February 2018 and that Mr Bretherton was able to observe Mr Bolton at all times when he removed the nuts and studs, which Mr Bretherton denied. The Original Tribunal preferred Mr Bretherton’s evidence.
(c)There was no convincing evidence provided by Fyshwick Auto that Harrison was a particularly risky suburb where wheel tampering might occur more than anywhere else.
(d)Even if Mr Bolton’s evidence about the state of the nuts and studs was accepted, any marks on the nuts and studs were probably caused by Fyshwick Auto’s own employee who removed the left-hand wheel and attached a spare on 12 February 2018.
(e)The hub locator was part of the purchased service on 14 February 2018. Fyshwick Auto should have installed the hub locator on 14 February 2018 as it had installed hub locators when installing the wheels on 7 February 2018.
(f)Mr Bolton checked the tensions of the nuts on all four wheels on 14 February 2018. Apart from removing the rear left-hand wheel, he did not remove the other wheels.
(g)John McGrath Ford serviced the vehicle on 24 February 2018 and this included “inspection” of brakes and wheel bearings and “checks” of wheel nuts for correct tensions and wheel covers.
(h)John McGrath Ford removed all wheels at their inspection on 22 March 2018 and found that the cause of the front right wheel failure “to be either left loose or overtightened causing wheel nuts to come off and snap wheel studs” and that the rear left-hand wheel was “found to have no hub locator in.”
(i)Mr Bretherton offered Fyshwick Auto ample opportunity to inspect the vehicle, after the wheel failure on 17 March 2018.
(j)There was doubt about the reliability of Mr Bolton’s evidence that he had rung Mr Bretherton a number of times after 19 March 2018. The Original Tribunal accepted Mr Bretherton’s evidence that he had no missed calls and no voice messages.
(k)Fyshwick Auto’s installation of the wheels on 7 February 2018 was unprofessional, as was Fyshwick Auto’s installation of the new rear left wheel and checking the connection of all wheels on 14 February 2018.
(l)Fyshwick Auto breached the statutory guarantee in section 61 of the Australian Consumer Law (ACL) to render services with due care and skill and for goods to be fit for purpose on 7 February 2018 and on 14 February 2018. Each of the breaches is a major failure.
(m)The supply of services on 7 February 2018 and on 14 February 2018 created an unsafe situation in accordance with section 268 of the ACL.
(n)Fyshwick Auto rejected or refused or failed to comply with Mr Bretherton’s requirement that the failure be remedied in a reasonable time (under section 276 of the ACL).
(o)Mr Bretherton was entitled to get the situation inspected by John McGrath Ford on 22 March 2018 and rectified by them in April 2018.
(p)The amount for damages claimed by Mr Bretherton was reasonably foreseeable loss or damage for Fyshwick Auto’s breaches.
The appeal proceedings
21.On 29 November 2018 Fyshwick Auto lodged an application for appeal against the Original Tribunal’s decision. The application annexed a document identifying the following thirteen questions of law or fact:
1) The [Original Tribunal] repeatedly misstated the evidence about the removal of nuts and studs from the left hand rear wheel of the applicant’s motor vehicle and the observations of signs of tampering with the nuts securing the left hand rear wheel when inspected by motor mechanic, Mr Bolton, on 12 February 2018…
2) The [Original Tribunal] misapprehended the evidence and wrongly concluded that any marks on the wheel nuts observed by Mr Bolton on 12 February 2018 were “probably caused by the respondent’s own employee who removed the left hand rear wheel and attached a spare” … firstly because there was no evidence that that employee did that at all and secondly because there was uncontroverted evidence that the wheel nuts in question were of unusual design, necessitating a special socket for removal, one of which had been supplied to the applicant with the wheels.
3) The [Original Tribunal] misapprehended the evidence concerning the attempt by Mr Bolton to explain the marks which he found on the wheel nuts when he showed those marks to [Mr Bretherton] on 12 February 2018 in that:
i.[The Original Tribunal] never apparently comprehended the difference between wheel nuts and wheel studs.
ii.[The Original Tribunal] found that there were only marks on top of the wheel nuts (all of which were ultimately replaced) notwithstanding Mr Bolton’s evidence to the contrary and [Mr Bretherton’s] mere recollection that he only saw marks on top of a nut or nuts.
iii.[The Original Tribunal] reversed the onus of proof in relation to the cause of the wheel failure on 12 February 2018 …
iv.[The Original Tribunal] unreasonably rejected a possible explanation for the failure of the wheel on 12 February 2018 and the failure of another but different wheel a month and 3000 kilometres later on 17 March 2018 on the basis that [Fyshwick Auto] bore some evidentiary onus of proof in relation to that matter.
4) The [Original Tribunal] found that [Fyshwick Auto] was “unprofessional’ in the installation of the wheels on 7 February 2018 which [Mr Bretherton] had purchased for his vehicle and in the installation of a wheel and the checking of all other wheels on the vehicle on 12 February 2018 without ever articulating in any way what the supposed act or omission constituting that “unprofessional” conduct was.
5) The [Original Tribunal], in making [its] findings, such as they were, failed to explain or articulate as part of [its] reasoning process, how the failure to supply a hub locator for the left hand rear wheel replaced after 12 February 2018, caused any loss (other than the cost of the locator) or how that failure related logically to the failure of the right hand front wheel which, at all times, was fitted with a hub locator. [footnote omitted]
6) The [Original Tribunal] either did not understand the evidence concerning the purpose and the use of a hub locator or failed to give any proper weight to the evidence of Mr Troy Bolton … and Mr Joe Madaffari … in that regard, apparently concluding that in some way the failure to supply a hub locator for the left hand rear wheel after 12 February 2018 caused the right hand front wheel failure on 17 March 2018.
7) The [Original Tribunal] misapprehended the John McGrath Ford documentation dated 22 March 2018 apparently eliding the comments in relation to the right hand front wheel and the left hand rear wheel and neglecting to give any or any proper weight to the conclusion that the right-hand front wheel had failed either because the wheel nuts had been left loose or over-tightened and, in context, either ignored or failed to give any weight to the fact that on 22 February 2018 John McGrath Ford serviced the vehicle including checking the wheel nuts for correct tension …
8) The [Original Tribunal] erred in apparently accepting the illogical expert opinion of Mr Joe Madaffari that the absence of hub locators was “why the wheels were coming off” … in circumstances where the left hand rear wheel did have a hub locator fitted when it became loose and the right hand front wheel also had a hub locator fitted when it came loose and ought instead, as a matter of common sense, have accepted the evidence of Mr Troy Bolton who possessed superior and specialised expertise, that hub locators are not essential; that they merely assist in centering a wheel on its hub and that a wheel without a hub locator, provided it is fitted properly, would be centered in any event.
9) The [Original Tribunal’s] judgment is so replete with misstatements in relation to the evidence and misunderstandings in relation to the technical and documentary evidence as to leave a fair minded observer with the impression that [the Original Tribunal] did not understand the issues to be determined or failed to properly apply [its] mind to the determination of those issues in light of the fact, inter alia, that:
i.The witness Troy Bolton never gave evidence that any wheel nut was broken when the respondent’s vehicle was inspected on 12 February 2018 …
ii.The same witness never gave evidence that any wheel stud showed signs of tampering when he inspected the vehicle on 12 February 2018 and consequently never told the applicant that it did … or showed him a broken wheel stud …
iii.There was never any evidence that any employee of [Fyshwick Auto] attended that vehicle on 12 February 2018 and removed any studs on the faulty wheel … nor that Mr Bolton did later on that day …
iv.[Fyshwick Auto] never alleged there was evidence of tampering to the side of one or more of the wheel studs … or “scratches on the top of the studs” …
10) The [Original Tribunal] consistently confused wheel studs with wheel nuts and often referred to them collectively in circumstances where the only evidence about wheel studs came from Mr Troy Bolton to the effect that in his experience over-tightening wheel nuts will normally break a wheel stud “right there and then”; the John McGrath Ford report of 22 March 2018, which referred to wheel nuts either left loose or over tightened, causing the nuts to come off and snap wheel studs; the evidence of the NRMA inspection on 17 March 2018 that one or two wheel studs were broken … and the evidence of Mr Joe Madaffari that he saw wheel studs snapped “in a manner flush to the rim” that showed the wheel nuts had been over tightened …
11) The [Original Tribunal’s] summary of what John McGrath Ford allegedly found at inspection on 22 March 2018 was both confused and confusing eliding the conclusion concerning the failure of the right hand front wheel with the finding that there was a hub locator missing from the left hand rear wheel …
12) The [Original Tribunal] failed to connect the evidence that John McGrath Ford found “there were five nuts missing from the wheels as a whole” … with the evidence of how the vehicle had been mobilised for transport by NRMA[4] and appeared to emphasise the evidence of Mr Julian Fresi that the vehicle was “unroadworthy due to missing wheel nuts” … in a manner which [it] never related in any way to [its] primary findings of fact.
13) The [Original Tribunal] unreasonably and irrationally discounted the evidence of Mr Troy Bolton because he had asserted in a statement that the respondent company employed 6 mechanics but on reflection and in his oral evidence he corrected that to 5 … and because he did not produce documentary evidence of telephone calls he said he made to the applicant … choosing to characterise Mr Bolton’s evidence in that regard as “no evidence”.
[4] NRMA Confirmation of Roadside Assistance dated 12 April 2018: “The Patrol had to remove nuts from other wheels to put the unsecured wheel onto the vehicle so it could be put up on the tow truck”
22.On 23 January 2019 Fyshwick Auto filed a list of further errors or questions of law or fact in which it alleged that there was no evidence to support the Original Tribunal’s findings that:
14) … any employee of [Fyshwick Auto] removed the left hand rear wheel of [Mr Bretherton’s] motor vehicle on 12 February 2018 utilising any tool other than the special socket designed for that purpose which had been previously supplied by [Fyshwick Auto] to [Mr Bretherton] and therefore no basis for the [Original Tribunal] to conclude that any signs of damage to the wheel nuts securing the left hand rear wheel to [Mr Bretherton’s] vehicle when it was seen by Mr Troy Bolton at [Fyshwick Auto’s] workshop on the 12th of February 2018 must have been, nor indeed could have been, caused by such an employee.
15) … prior to 12 February 2018 [Fyshwick Auto] had failed to fit a hub locator to the left hand rear wheel of [Mr Bretherton’s] motor vehicle.
16) … prior to 12 February 2018 [Fyshwick Auto] had over-tightened the wheel nuts attaching the left hand rear wheel to the wheel studs of [Mr Bretherton’s] vehicle.
17) … at any time prior to 17 March 2018 [Fyshwick Auto] had failed to fit a hub locator to the right hand front wheel of [Mr Bretherton’s] motor vehicle.
18) … the failure to fit a hub locator was the reason why either or both the left hand rear wheel and the right hand front wheels of [Mr Bretherton’s] motor vehicle came loose.
23.Fyshwick Auto also submitted[5] that the conclusion of the Original Tribunal, if indeed it was its conclusion, that the failure to fit hub locators was essential or necessary to avoid wheels coming loose was “contrary to the evidence … having regard to the totality of the evidence concerning the circumstances in which each of the wheels in question came loose.”
[5] Appellant’s list of errors pursuant to directions dated 21 December 2018 [18]
24.Fyshwick Auto submitted that the Original Tribunal ought to have concluded that the reason why the right-hand front wheel of Mr Bretherton’s vehicle came loose on 17 March 2018 was that “the wheel nuts securing that wheel to the vehicle’s wheel studs were over-tightened either by some unidentified employee of John McGrath Ford at the same time the vehicle underwent regular service on 24 February 2018 or some unidentified person after that date.”[6]
[6] Appellant’s list of errors pursuant to directions dated 21 December 2018 [19]
25.Mr Bretherton filed written submissions on 29 January 2019 in which he responded to Fyshwick Auto’s submissions of 23 January 2019.
26.Fyshwick Auto filed submissions in reply on 31 January 2019.
The role of the Appeal Tribunal
27.The Appeal Tribunal adopts the statements in the recent appeal decision in Puri v Iconic Markets and Events Pty Ltd[7] where that appeal tribunal referred to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and set out its role as follows:
[7] [2019] ACAT 28 [54]-[56]
Section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (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’. That provision shapes the requirements and limitations of the appeal.
The role of the Appeal Tribunal is different from the role performed by the Original Tribunal. An appeal Tribunal must determine whether the decision appealed from is wrong because the original Tribunal fell into an error of law, 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. Ordinarily, if there has been no further evidence admitted or no relevant change in the law, an appeal Tribunal can exercise its appellate powers only if satisfied that there was an error on the part of the original Tribunal. The appeal Tribunal will also give proper allowance to the advantage of the original Tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
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 a question of fact or law. The appellant cannot merely request the re-exercise of a discretion. The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not life the previous decision. If that were so there would be no point in the original hearing. [footnotes omitted]
Submissions for Fyshwick Auto
28.Mr Pappas, Counsel for the appellant, submitted that the Original Tribunal decision of 9 November 2018 is fundamentally flawed in a number of respects and sought that the appeal be allowed and the various orders made by the Original Tribunal on 9 November 2018 be set aside in toto.
29.The Appeal Tribunal has distilled the appellant’s submissions in the document entitled ‘Appellant’s Written Outline of Argument’, which was filed on 6 March 2019, and in the submissions filed on 23 January 2019 as follows.
Fyshwick Auto’s installation of the wheels
30.The Original Tribunal did not specify in what respect it regarded Fyshwick Auto’s installation of the wheels on 7 February 2018, before any failure, was unprofessional. Nor did the Original Tribunal ever articulate how or why it came to that conclusion.
31.The Original Tribunal also did not specify in what respect it regarded the replacement of the rear left wheel on 14 February 2018 and Fyshwick Auto’s checking of all the wheels at that time, was unprofessional.
32.While Fyshwick Auto accepted that, through oversight, a hub locator had not been fitted to the left-hand rear wheel on 14 February 2018, that oversight did not cause the failure of the right front wheel on 17 March 2018 or the left rear wheel failure on 12 February 2018. A locator had been fitted to the right front wheel and the left-hand rear wheel and the other wheels on 7 February 2018.
33.The Original Tribunal’s oral reasons for decision ignore the evidence concerning the reason or purpose of hub locators and the consensus among the experts that, providing a wheel is attached properly, namely “the nuts on the wheel are tightened correctly and in the correct sequence”, because of their tapered edge that has the effect of centering the wheel on the hub.[8]
[8] Transcript of proceedings 19 September 2018 page 39, lines 38-40 per Mr Madaffari T; see also page 67, lines 11-37 per Mr Fresi and pages 96-98 per Mr Bolton
34.The Original Tribunal assessed the evidence in relation to hub locators by emphasising, incorrectly, Mr Madaffari’s opinion evidence that the absence of a hub locator was “why the wheels were coming off”[9] when Mr Madaffari’s evidence was referring to a Hilux motor vehicle referred to him when he previously worked for Toyota. He was not referring to Mr Bretherton’s vehicle.
[9] Transcript of proceedings 9 November 2018 page 44
35.Further, Mr Madaffari’s evidence was contradicted by the established facts that at all relevant times, the two wheels under consideration were fitted with hub locators at the time each wheel failed.
Fyshwick Auto’s over-tightening of the wheel nuts
36.In the process of filing submissions in the appeal, Mr Bretherton now submitted that the cause of the 17 March 2018 failure was not the absence of a hub locator but the appellant’s over-tightening of wheel nuts. Mr Bretherton’s submission ignores Mr Madaffari’s evidence of a regular 30,000km service by John McGrath Ford on 24 February 2018 which states, in service tax invoice FMFGH80630, “checked wheel nuts for correct tension.”
37.The Original Tribunal referred to invoice FMFGH80630 in passing in its oral reasons for decision. While the Original Tribunal specifically referred to the relevant entry about John McGrath Ford having checked the wheel nuts for the correct tension on 24 February 2018, it completely ignored that fact in formulating its judgment.
38.There was no evidence that would have allowed the Original Tribunal to find that Fyshwick Auto somehow rendered unprofessional service in fitting the left rear wheel on 7 February 2018 or, save for the oversight in not replacing the hub locator which the evidence revealed was entirely insignificant, re-fitting that wheel on 12 February 2018.
Mr Bolton’s evidence
39.In terms of his professional qualifications and relevant work experience, outlined in his statement and in his oral evidence, Mr Bolton was the most qualified expert to give evidence before the Original Tribunal. It ought to have been accepted. His evidence about his qualifications and experience, set out in paragraphs 4 to 8 of his statement dated 27 August 2018, was never challenged by Mr Bretherton or the Original Tribunal.
40.The Original Tribunal’s criticism of Mr Bolton related to his alleged unreliability, not his credit, was based on the flimsiest of material and was unsustainable. In his statement, Mr Bolton stated[10] that “the company employs, on average, 6 mechanics and tyre technicians” (emphasis added by Counsel for the appellant). The Original Tribunal said[11] that “it emerged that one of the people he was counting as a mechanic wasn’t a mechanic” and that:
it emerged that Mr Bolton was inaccurate when saying there are six mechanics … and admitted that his business partner has another trade, suggesting a level of reliability [sic] in Mr Bolton’s evidence about relevant facts.[12]
[10] Statement of Troy William Bolton dated 27 August 2018 [7]
[11] Transcript of proceedings 9 November 2018 page 9, lines 2-4
[12] Transcript of proceedings 9 November 2018 page 7, lines 6-9
41.Fyshwick Auto submitted that the Original Tribunal misunderstood or erred in understanding Mr Bolton’s evidence and this error infected its approach to all of the evidence. Even if Mr Bolton erred in identifying the number of motor mechanics and tyre technicians, which is not conceded, it was inconsequential, a minor matter and of no real significance. It was not a ‘relevant fact’.
42.The Original Tribunal also referred to Mr Bolton’s failure to produce evidence, other than his oral testimony, of having attempted to speak to Mr Bretherton after 19 March 2018, referring to it as “no evidence.” Fyshwick Auto submitted that this criticism was unfair and ill-founded, describing it as a side issue not going to the core of the matter before the Original Tribunal.
43.Even if there was some proper basis for concluding that Mr Bolton’s evidence was unreliable — and the appellant says there was not — that says nothing about the evidence he gave of the company’s system of work; its volume of work and the absence of any other incident involving a wheel coming loose in seven years of trading and the servicing of some 35,000 motor vehicles.
Tampering with the vehicle’s wheels
44.Although not central to the determination of the appeal, Fyshwick Auto pointed out that the Original Tribunal misdirected itself by rejecting Mr Bolton’s evidence “that living and parking a car in Harrison is a particularly risky suburb and the tampering might occur more [there] than anywhere else.”[13]
[13] Transcript of proceedings 9 November 2018 page 8, lines 37-39
45.It was not for Fyshwick Auto to attempt to explain why the left rear wheel had come loose. The onus was always on Mr Bretherton. The Original Tribunal reversed the onus of proof and demonstrated a misunderstanding of Mr Bolton’s evidence in relation to potential tampering with Mr Bretherton’s vehicle. Mr Bolton had given evidence of seeing marks consistent with tampering with the wheel nuts, not studs, securing the left-hand rear wheel on 12 February 2018 which he pointed out to Mr Bretherton and suggested that they might be evidence of someone trying to steal his new aftermarket wheels. Mr Bolton did not advance that explanation beyond a mere theory.
The cause of the 17 March 2018 front right wheel failure
46.Fyshwick Auto submitted that the only reasonable conclusion available on the evidence is that the right front wheel came loose because the wheel nuts securing that wheel had either been over-tightened or left loose. Mr Bolton’s evidence was that he had checked the tightness on all wheel nuts on 12 February and Mr Bretherton accepted that he did.[14]
[14] Transcript of proceedings 19 September 2018 page 94, lines 37-46 and page 95, lines 6-14
47.John McGrath Ford checked the tightness of the wheel nuts on 24 February 2018. Mr Bretherton said he visually checked the wheel nuts before his wife left for Bowral in the vehicle on 17 March 2018.[15]
[15] Transcript of proceedings 19 September 2018 page 87, line 10
48.John McGrath Ford gave as an explanation for the failure of the right front wheel nuts that they were “either left loose or over-tightened”.[16]
[16] John McGrath Ford Service Tax Invoice FMFGH83613 dated 22 March 2018
49.Both the Original Tribunal and Mr Bretherton overlooked that explanation in favour of an explanation which was clearly wrong.
50.While Mr Bretherton submits, now, that the failure was caused by over-tightening of the wheel nuts, he has ignored the John McGrath Ford service on 24 February 2018. This service was a novus actus interveniens.
Mr Bretherton’s submissions
51.Apart from Mr Bretherton appearing to acknowledge in his written submissions filed on 29 January 2019 that the absence of a hub locator may not have been the cause of the failure on 12 February 2018 as a hub locator had originally been fitted on 7 February 2018,[17] and now asserting that the failure of the right-hand front wheel on 17 March 2018 was caused by over-tightening of that wheel, he submitted that the decision of the Original Tribunal and the reasons for it were correct.
[17] Respondent’s submissions filed 29 January 2019 [3]
52.Mr Bretherton noted, while not questioning Mr Bolton’s experience, that Mr Bolton was the only witness to provide technical comments at the hearing for Fyshwick Auto whereas he had called two expert witnesses, Mr Madaffari and Mr Fresi, and their evidence was accepted by the Original Tribunal. He did not disagree with the Original Tribunal’s findings in relation to Mr Bolton’s reliability as a witness, noting that: Mr Bolton had not provided clear measures of quality assurance in place at his business; Mr Bolton could not accurately state how many mechanics were employed by his business; and he could not state what tension the wheels should be tightened to or what the standard setting for the state of the art machinery was for tensioning wheels. Mr Bretherton also noted the fact that the employee who had attended the vehicle on 12 February 2018, where it had broken down, was no longer employed by the company because of performance reasons.[18]
[18] Respondent’s submissions filed 29 January 2019 [5]
53.Mr Bretherton also submitted that there was substantial evidence to support the fact that Fyshwick Auto’s incorrect tensioning of the wheels caused both failures adding “the failure to have substantial quality assurance procedures (as acknowledged during the hearing) may or may not have resulted in other errors (failing to fit the hub locator), and clearly demonstrates a reason for concern.”[19]
[19] Respondent’s submissions filed 29 January 2019 [8]
54.Mr Bretherton further submitted that “[i]t follows then that as neither myself … or John McGrath Ford either checked or tensioned the wheels on any occasion until after the second failure [on 17 March 2018], and there is no substantive evidence to support tampering on two occasions, the cause must come from Fyshwick Automotive.”[20]
[20] Respondent’s submissions filed 29 January 2019 [11]
55.He sought that the Original Tribunal’s decision ‘stand’. In addition, he sought that Fyshwick Auto pay damages being:
a. $3,000 compensation for his time preparing, submitting and attending these proceedings; and
b. any other amount deemed suitable by the Tribunal for stress and ‘shock’ caused to him and his wife throughout the ordeal, or that could have been caused should the wheel have come off on the Federal Highway (on 17 March 2018).
The applicable law
56.While the Original Tribunal considered the ACL — in particular, whether Fyshwick Auto failed to meet the statutory guarantees for its service of Mr Bretherton’s vehicle, and if the loss or damage claimed was suffered because of any failure to comply with the ACL — the questions of fact or law for determination do not require the Appeal Tribunal to consider the ACL.
57.The questions raised in this appeal require the Appeal Tribunal to look at the evidence concerning the circumstances in which each of the wheels in question came loose and which led to the Original Tribunal finding that “the installation of the wheels by [Fyshwick Auto] on 7 February was unprofessional” and “the installation of a wheel and the checking by [Fyshwick Auto] after an incident with one of them on 12 February 2018 was also unprofessional.”
Consideration
58.In this case the appeal was dealt with as a review of the original decision. To succeed the appellant must satisfy the Appeal Tribunal that the original decision maker erred in fact or law and that the error was material to the outcome.[21] The Appeal Tribunal has considered the evidence before the Original Tribunal and its findings in relation to the questions of fact or law relied on by the appellant by considering the following pertinent matters (at subheadings A to E, below).
A. Hub locator
[21] Mansour v Dangar [2017] ACAT 49 [18]-[19]
59.Fyshwick Auto did not dispute at the original hearing that it had not fitted a hub locator when replacing the left-hand rear wheel on 14 February 2018. However it maintained that Fyshwick Auto had fitted hub locators in each of the four aftermarket wheels installed on 7 February 2018 before either the left-hand rear wheel or the right-hand front wheel failed.
60.Whether the failure to fit a hub locator on or about 14 February 2018 justified the Original Tribunal finding that Fyshwick Auto engaged in ‘unprofessional service’ will be considered below.
61.Mr Bretherton originally asserted that, when John McGrath Ford inspected the vehicle after the front right-hand wheel failed on 17 March 2018 and found that the left rear wheel was missing a hub locator, the absence of the hub locator explained the failure of the left rear wheel on 7 February 2018 and the front right wheel on 17 March 2018. However, Mr Bretherton appeared to move from this position in his submissions filed during the appeal.
62.It is clear from a perusal of the transcript of the hearing and the oral reasons for decision that Fyshwick Auto had installed hub locators on each of the four aftermarket wheels it installed on Mr Bretherton’s vehicle on 7 February 2018. Therefore, the absence of a hub locator cannot have caused the left-hand rear wheel to become loose on 12 February 2018 or the front right-hand wheel to have become loose on 17 March 2018. Both wheels had hub locators fitted.
63.As stated above, the Original Tribunal did not say in its reasons for decision why it concluded that the appellant’s installation of the wheels on 7 February 2018 was unprofessional. If the basis for the Original Tribunal’s conclusion was the absence of the fitting of the hub locators to the left rear wheel and front right‑hand wheel, for the reasons set out above the Original Tribunal has erred. Such a finding is against the evidence and the weight of the evidence.
64.Counsel for the appellant submitted that the failure to fit a hub locator on 14 February 2018 was:
a lacuna … in the service that was offered, but it had no effect because on no version could the absence of the hub locator explain the original failure, because there was one, and it couldn’t explain the subsequent failure because there was one.[22]
[22] Transcript of proceedings 13 March 2019 page 8, lines 28-31
65.Counsel submitted that the hub locator argument was a “red herring”.[23] The Appeal Tribunal agrees.
[23] Transcript of proceedings 13 March 2019 page 8, line 33
66.There was no evidence before the Original Tribunal that the left-hand rear wheel had failed again, after the service on 14 February 2018. The expert evidence from Mr Madaffari and Mr Fresi about the role of hub locators relied on by the Original Tribunal [24] should not have been relied on by that Tribunal, as the uncontroverted evidence was that each wheel had a hub locator at the time of their respective failures. Those witnesses evidence about hub locators was irrelevant to determining the cause of the left-hand rear wheel failure on 12 February 2018.
[24] Transcript of proceedings 9 November 2018 page 9, lines 29-31
67.For these reasons the Appeal Tribunal is also satisfied that the Original Tribunal’s finding that the service provided by Fyshwick Auto on 7 February 2018 was unprofessional was also against the evidence and the weight of the evidence. The Original Tribunal has erred.
68.The Original Tribunal also found that the appellant’s service on or about 12 to 14 February 2018 was unprofessional. Based on this and its incorrect finding that, apparently, the appellant had not installed hub locators on 7 February 2018, and which led to the Original Tribunal also finding this service to be unprofessional, it referred the appellant to the Commissioner and Regulator for Fair Trading and the Commissioner and Regulator for the Work, Health and Safety Act 2011.
69.The appellant acknowledged that it had not fitted a hub locator to the left rear wheel on 14 February 2018 as the locator was not provided with the new aftermarket tyre installed. The cost of the hub locator was $9.93.[25] Having considered the transcript, it is clear that there was compelling evidence that “if the nuts on the wheels are tightened correctly and in the correct sequence the wheel would be centred (in the absence of a hub locator).”[26]
[25] John McGrath Ford Service Tax Invoice FMFGH853 dated 16 April 2018
[26] See footnote 8, above
70.For these reasons, the Appeal Tribunal finds that the Original Tribunal’s finding that the service provided by the appellant on or about 14 February 2018 was unprofessional was against the evidence and the weight of the evidence. The Original Tribunal has erred.
71.While the Appeal Tribunal will consider the evidence in relation to tampering with the wheel nuts below, the Appeal Tribunal was concerned with the Original Tribunal’s finding that:
that any marks on the nuts and studs were probably caused by [Fyshwick Auto’s] own employee who removed the left hand rear wheel and attached a spare, as [Mr Bretherton] put it, “In an ad hoc manner”, on 12/2/2018.”[27]
[27] Transcript of proceedings 9 November 2018 page 9, lines 7-10
There was no evidence before the Original Tribunal to support such a finding.
B. Wheel nuts
72.Counsel for the appellant submitted, and the Appeal Tribunal agrees, that there was no evidence before the Original Tribunal that the appellant over-tightened or untightened any wheel supplied and fitted by it on 7 February 2018. Mr Bolton’s evidence, which was never challenged, was that Fyshwick Auto was a professional wheel and tyre supplier of some standing and experience using state of the art machinery and devices to perform its work and render its services.
73.Mr Bolton also gave evidence, which was unchallenged, that he checked the tightness of all wheel nuts attaching the wheels to the respondent’s vehicle after replacing the left-hand rear wheel on 14 February 2018. The vehicle had not been in the appellant’s possession since 14 February 2018.
74.In the absence of the Original Tribunal stating why it came to the conclusion that the appellant’s services in February 2018 were unprofessional, if it based its decision to find that Fyshwick Auto’s services on 7 February 2018 and on 14 February 2018 were unprofessional on the premise that it either over-tightened or untightened the wheel nuts during these services, then such a finding was not supported by the evidence and was in error.
75.Mr Bretherton also gave evidence that he, too, had visually checked the wheel nuts from time to time after 14 February 2018 up to 17 March 2018.
76.John McGrath Ford offered two possible causes for the right rear wheel failure on 17 March 2018: over tightening of the wheel nuts or loosening of the wheel nuts.
77.There was oral evidence and documentary evidence before the Original Tribunal which established that on 24 February 2018 John McGrath Ford serviced the vehicle for its 30,000 km/24 month service. Service Tax Invoice FMFGH80630 from John McGrath Ford for that service stated that they checked the wheel nuts for correct tension. This was prior to the right-hand front wheel coming loose on 17 March 2018.
78.This John McGrath Ford service took place after the vehicle was with the appellant for replacing the left rear wheel on 14 February 2018. While the Original Tribunal referred to the invoice FMFGH80630 in its decision, it appears that it did so in passing and did not attach any weight, or any appropriate weight, to the entry in that invoice that the service provided and paid for by Mr Bretherton included checking the wheel nuts for correct tension. The Original Tribunal’s failure to do so materially affected its decision and was an error.
C. Mr Bolton’s reliability as a witness
79.The Original Tribunal criticised Mr Bolton as a witness. Having considered the transcript of the reasons for decision it appeared that, while the Original Tribunal’s criticism related to his alleged unreliability, this appeared to transform into an attack on his credit, a completely separate and distinct concept, which the Original Tribunal relied on to discount his evidence.
80.Counsel for the appellant submitted that the Original Tribunal’s criticism of Mr Bolton’s reliability as a witness was based on the flimsiest of material and was unsustainable. The Appeal Tribunal agrees.
81.Firstly, Mr Bolton had stated in his statement of 27 August 2018 that Fyshwick Auto “employs on average 6 mechanics and tyre technicians.” Counsel for the appellant highlighted the use of the words ‘average’ and ‘and’ in that statement, which appeared to have been overlooked or ignored by the Original Tribunal. He submitted for the Original Tribunal to highlight that “it emerged that one of the people he was counting as a mechanic wasn’t a mechanic” in isolation of his other evidence was wrong and it provided no basis for the Original Tribunal discounting the weight to be afforded to Mr Bolton’s evidence.
82.Secondly, the Original Tribunal doubted the reliability of Mr Bolton’s evidence in relation to his calling Mr Bretherton a number of times after 19 March 2018 when Mr Bretherton said he had no missed calls or voice messages. The Original Tribunal stated “There was no evidence [Mr Bolton] did make these calls.”[28] Mr Pappas submitted, as the tribunal is not bound by the rules of evidence,[29] the Original Tribunal’s finding was unfair and ill-founded.
[28] Transcript 9 November 2018 page 13, lines 32-33
[29] ACAT Act section 8 states “To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT”
83.For these reasons, Mr Pappas submitted that the Original Tribunal fell into error and this error infected the Original Tribunal’s approach to all of the evidence. There is considerable merit in this submission.
D. Mr Bolton’s evidence about possible tampering with the vehicle’s wheels
84.The only evidence of a possible cause of failure of the left rear wheel on 12 February 2018 was Mr Bolton’s evidence[30] that he saw marks on the wheel nuts of that wheel consistent with someone tampering with the wheel nuts by using a non-dedicated socket of the sort required for the proper removal of those wheel nuts. He had a conversation with Mr Bretherton in which he pointed out those marks on the nuts and suggested that they might be evidence of someone attempting to steal his new aftermarket wheels. It was no more than a theory. After that conversation Mr Bretherton said he did visually check the security of his wheel nuts from time to time.
[30] Statement of Troy William Bolton dated 27 August 2018 [24]-[26]
85.Counsel for the appellant submitted that the Original Tribunal misdirected itself by rejecting Mr Bolton’s evidence “that living and parking a car in Harrison is a particularly risky suburb and the tampering might occur more than anywhere else”,[31] adding that it was not for Fyshwick Auto to attempt to explain why that wheel had come loose. The Appeal Tribunal agrees with Mr Pappas. This appears to be another manifestation of the Original Tribunal’s error referred to in paragraph 83, above.
E. Cause of the right-hand front wheel failure on 17 March 2018
[31] Transcript of 9 November 2018 page 8, lines 37-39
86.The Appeal Tribunal is satisfied that the only reasonable conclusion available on the evidence is that the right-hand front wheel of the vehicle came loose on 17 March 2018 because the wheel nuts securing that wheel had either been over-tightened or left loose.
87.This evidence was found in the John McGrath Ford report dated 22 March 2018 prepared by Mr Madaffari which stated “that wheel nuts had been either left loose or over tightened causing the nuts to come off and snap wheel studs”. It was also in the invoice from John McGrath Ford dated 22 March 2018 and in the 16 April 2018 invoice from John McGrath Ford which stated “check and quote repairs on broken wheel studs and new rim”. It is also supported by the NRMA report dated 12 April 2018 following its inspection on 17 March 2018 which stated “[p]atrol advised when he arrived at the vehicle there was 1 or 2 broken wheel studs and the remaining wheel nuts were missing.” Mr Fresi, who had worked on the vehicle when it was brought into John McGrath Ford after the right-hand wheel failure on 17 March 2018, had prepared the John McGrath Ford service tax invoice dated 22 March 2018. He gave evidence that he believed that the failure was caused by the wheel nuts being over-tightened or left loose. He also said that after he had written that invoice he firmed up on the view that the failure was caused by the wheel nuts being over-tightened.
88.The appellant last had access to the vehicle on 14 February 2018. The Original Tribunal found that Fyshwick Auto’s installation of the left-hand rear wheel and the checking of all of the wheels on 14 February 2018, after the incident on 12 February 2018, was unprofessional.
89.Such a finding completely ignores the evidence before that tribunal that John McGrath Ford checked the tension of the wheel nuts on all wheels when conducting a regular service of the vehicle on 24 February 2018. Therefore, if any wheel nuts were over-tightened, then it must have happened when John McGrath Ford checked the tension of the wheel nuts. In any event, the evidence unambiguously supported a finding that the appellant did not over-tighten the wheel nuts. The John McGrath Ford service on 24 February 2018 was one novus actus interveniens.
90.The Original Tribunal erred in this finding.
91.For these reasons the Appeal Tribunal is satisfied that each of the questions of fact or law set out in paragraphs 21 to 22 above have been established.
Remedies
92.The appellant seeks that the appeal be allowed and the various orders be set aside in toto. It also seeks that the respondent pay its costs and the filing fee of $1,118 pursuant to section 48 of the ACAT Act. Subsection 48(1) of the ACAT Act provides that the parties to an application must bear their own costs unless the ACAT Act or another territory law otherwise provides or the tribunal otherwise orders. Subsection 48(2)(a)(i) of the ACAT Act provides that, if the tribunal decides an application in favour of an applicant, the tribunal may order the other party to pay the applicant the filing fee of the application.
93.The respondent asks that the Original Tribunal decision be confirmed and that the appellant also pay him $3,000 compensation for his time in preparing for, submitting material for, and attending these proceedings, and any other amount deemed suitable by the Tribunal for the stress and ‘shock’ caused to him and his wife, or that could have been caused should the wheel have come off on 17 March 2018.
94.As stated in paragraph 92, pursuant to section 48(1) of the ACAT Act the parties must bear their own costs unless the tribunal otherwise orders. The Appeal Tribunal is not satisfied that Mr Bretherton’s claim for time spent on this matter is recoverable by him under this section. His claim for unspecified damages for stress and shock was not part of the decision under review. While it was apparent to the Appeal Tribunal that Mr Bretherton and his wife were shocked by the situation they found themselves in on 12 February 2018 and 13 March 2018, the Appeal Tribunal does not have jurisdiction to consider this separate claim in these proceedings.
95.The Appeal Tribunal’s general powers are set out in rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (Rules) which states:
21 Appeals to tribunal—general powers
For an appeal to the tribunal, the tribunal—
(a) has all the powers and duties of the tribunal that made the orderappealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either
orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending or setting aside the
order of the tribunal appealed from; and(e) may make any other order it considers appropriate.
Conclusion
96.In the ACT Supreme Court decision of Lukatela v Birch,[32] which concerned a criminal appeal and the power to interfere with a discretionary judgment, Rares J said:
18. ....in Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ, and 187 [44] per Kirby, the High Court reiterated the critical difference between an appeal by way of rehearing and a hearing de novo. Generally (in the absence of a wider statutory power) in an appeal by way of rehearing, the appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error … But in an appeal by way of rehearing, once error below has been found, the appellate court can substitute its own decision based on the facts and the law as they now stand …
…
21. And, although the appeal is by way of rehearing, the appellate [sic] does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute …
[32] [2008] ACTSC 99
97.For the reasons set out above and notwithstanding the advantages of the Original Tribunal in hearing the evidence and finding facts based on its assessment of the evidence, the Appeal Tribunal is satisfied that the Original Tribunal made errors of fact and of law which were so material that they affected the conclusion reached. But for these errors, the decision would have been different. To allow the Original Tribunal decision to stand despite the errors would otherwise cause a miscarriage of justice.
98.The Appeal Tribunal is obliged to exercise its appellate duties in accordance with the statute. Pursuant to rule 21 of the Rules, the Appeal Tribunal will set aside the decision of the Original Tribunal on 9 November 2018 and substitute the Appeal Tribunal’s decision that the application filed on 4 May 2018 is dismissed.
99.The appellant, Fyshwick Auto, sought that the respondent, Mr Bretherton, pay its costs and be ordered to pay the filing fee for the application for appeal of $1,118.00, as the appellant’s attitude has always been that it should not have been brought to the tribunal. Counsel for the appellant submitted that the appellant had been forced to appeal by virtue of the number of errors in the original proceedings.
100.Pursuant to rule 21 (e) of the Rules the Appeal Tribunal may make any other order it considers appropriate. In the light of subsection 48(1) of the ACAT Act, the Appeal Tribunal is not persuaded that it should make an order that the respondent pay the appellant’s costs.
101.However, in relation to the payment of the filing fee, the Appeal Tribunal refers to paragraph 92, above. The Appeal Tribunal has decided the application for appeal in favour of the appellant. Noting that the Original Tribunal made such an order in favour of Mr Bretherton at first instance, the Appeal Tribunal orders that Mr Bretherton pay the filing fee of $1,118.00 to the appellant within 28 days.
………………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER:
AA 52/2018
PARTIES, APPELLANT:
Fyshwick Automotive Pty Ltd
PARTIES, RESPONDENT:
Alan Michael Bretherton
COUNSEL APPEARING, APPELLANT
Jack Pappas
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPELLANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
13 March 2019
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