Gosch v COPLEY (Appeals) - [2024] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOSCH v COPLEY (Appeals) [2024] ACAT 32

AA 33/2023 (XD 124/2023)

Catchwords: APPEALS – (CIVIL DISPUTE) – claim for damages arising from poor respray of a vehicle – appeal against award of $10,000 for loss claimed on sale of the vehicle – appeal on grounds of insufficient evidence including absence of any expert evidence to establish loss – evidence to show poor workmanship, but no evidence as to cost of repair, save for evidence of the appellant – no evidence of any loss on sale of the vehicle – error of law to award damages in absence of any evidence to quantify loss – appeal allowed in part

Cases cited:Commissioner for Social Housing v Tenant AA202154 [2022] ACAT 57
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283
Pye v Registrar, Domestic Animals Act [2022] ACAT 102

Tribunal:Presidential Member G McCarthy
Senior Member T Warwick

Date of Orders:  14 May 2024
Date of Reasons for Decision:      14 May 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 33/2023

BETWEEN:

TYCEN GOSCH

Appellant
AND:

ANDREW COPLEY
Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member T Warwick

DATE:14 May 2024

ORDER

The Tribunal orders that:

The decision under appeal is set aside.
The appellant pay the respondent $3,500 within 28 days.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

The appellant (Mr Gosch) appealed from an order of the original tribunal made on 7 August 2023 that he pay the respondent (Mr Copley) $10,000, arising from Mr Gosch’s respray of Mr Copley’s car: a 1961 Lincoln Continental.
The hearing before the original tribunal proceeded in the absence of Mr Gosch. This occurred consequent upon Mr Gosch informing the original tribunal by email on the morning of the hearing (7 August 2023) that, for personal reasons, he would be unable to attend the hearing. In his email, Mr Gosch added:
If it needs to be heard with myself not present I completely understand and hope the evidence I have provided would be sufficient.
The hearing proceeded on that basis.
The transcript of the hearing on 7 August 2023 records dialogue between the original tribunal and Mr Copley in which Mr Copley explained his claim; explained that he paid Mr Gosch $14,600 for the work done;[1] contended that if the paint job had been properly done he would have been able to sell the car for at least an additional $10,000; explained that Mr Gosch was unwilling to re-do the work save for respraying the boot and the bonnet; and that he sold the car for $48,000 “without getting a full paint job done”[2] because he did not have the money to do so.[3]
[1] Transcript of original proceeding, 7 August 2023, page 5, line 6
[2] Transcript of original proceeding, 7 August 2023, page 6, lines 1-2
[3] Transcript of original proceeding, 7…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gosch v COPLEY (Appeals)

Details

AGLC: Gosch v COPLEY (Appeals) [2024] ACAT 32
Case: [2024] ACAT 32
Decision Date: 14 May 2024

CaseChat Overview and Summary

The appellant, Mr Gosch, appealed against a decision of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) which had ordered him to repay $10,000 to the respondent, Mr Copley, for a substandard paint job on a vehicle. Mr Gosch argued that the decision was not supported by acceptable evidence, specifically claiming that no expert opinion had been provided regarding the quality of the work. Mr Copley, on the other hand, provided detailed videos, photographs, and his own opinion to support his case. He also stated that he could not provide an expert opinion as the vehicle had been sold.

The central legal issue before the tribunal was whether there was sufficient credible and reliable evidence to support the ACAT's decision that Mr Gosch should repay $10,000 to Mr Copley. The tribunal considered the principles of fairness and natural justice, which require decisions to be based on credible and relevant evidence. The tribunal noted that while neither party provided evidence on oath, the ACAT had the opportunity to review all submitted evidence, including detailed videos and photographs, and had made its decision based on that evidence. The tribunal also highlighted that the ACAT had the discretion to determine the appropriate amount of compensation, and Mr Copley's explanation for his calculation was reasonable.

In its reasoning, the tribunal emphasised that the ACAT's decision was based on credible and relevant evidence, and the tribunal found no error of fact or law in the ACAT's findings. The tribunal set aside the original decision and ordered Mr Gosch to pay $3,500 to Mr Copley within 28 days. This decision was made considering the overall evidence provided and the principles of fairness and natural justice.

Orders

Orders of the court

The Tribunal orders that:

The decision under appeal is set aside.

The appellant pay the respondent $3,500 within 28 days.

Background

Background to the litigation

For the purpose of the appeal, Mr Gosch provided written submissions expanding upon the grounds of appeal. In his written submissions, filed on 7 December 2023, Mr Gosch said:Facts I have lodged this appeal as I do not believe acceptable evidence has been provided to warrant the orders made against me in the original hearing.The respondent … was ordered to provide an expert opinion/inspection of the vehicle prior to the hearing however this was never received.The orders have been made with the only evidence being photos, videos and Mr Copley’s opinion (to my knowledge Mr Copley is not a spray painter or panel beater).Photographs and videos are extremely easy to be taken in such a way to show either good or bad, as you can see Mr Copley has tried to reflect anything bad about the job he can find (bear in mind it was never to be a show finish.)IssuesMy issue is as stated above, I do not believe the decision and orders made against myself are warranted due to insufficient and incomplete evidence provided by Mr Copley. For the purpose of the appeal, Mr Copley provided written submissions dated 11 December 2023. Leaving out procedural matters, and statements that are repeated, Mr Copley said:[T]here was more than enough evidence… for the member at the time to make a well-informed decision regarding the matter. ACAT was provided with detailed videos and images to review which clearly showed all the imperfections in the paintwork performed by Mr Gosch. Evidence provided by both parties shows that Mr Gosch even admitted fault in the work he performed.Further evidence shows that Mr Gosch could not perform the requested works correctly the first time as upon collecting the car for the first time, the work was so bad, I refused to accept the vehicle in that condition. I have provided all the written evidence that backs this up.Mr Gosch continually mentions not a ‘show finish’ - all the imperfections and lack of talent in the spray painting industry does not mean you can provide well below industry standard by saying it was never meant to be a ‘show finish’.In relation to Mr Gosch’s claim that no expert statement was provided by myself. At the time this was requested by Mr Gosch … I informed both Mr Gosch and the Member that I would be unable to provide such a statement as the vehicle had been sold. The Member was fully aware of this when making their decision.In relation to Mr Gosch’s issues, the Member at the time not only reviewed all evidence prior to the hearing commencing but also stopped the hearing to have a break so the Member could review ALL the evidence that both parties had submitted.Upon reviewing all the evidence for a second time, the Member made an informed decision based on that evidence. I am yet to see any evidence to the contrary where the Member has made an ill-informed decision which is the whole point of the appeal process.Mr Gosch states that my evidence is incomplete, yet I provided overwhelming evidence clearly showing all the imperfections and defects to which the Member agreed. To base the appeal on suggesting that the detailed high definition photos and videos I provided were taken in such a way to make the paint job look poor is utterly ridiculous.If there was not anything wrong with the paint job, no photo or video could make it look bad. Is Mr Gosch suggesting I’m using fake or trickery photography to help boost my claim? That would be suggesting I am committing fraud which I will not tolerate.Mr Gosch has admitted on more than one occasion that his work was well below par which is clearly consistent with all the overwhelming evidence I have provided and as such, the Member clearly and rightly agreed.Mr Gosch admitted the chrome work was not up to standard and offered a full refund and also admitted to respray the bonnet and the boot for a second time because that was also not up to standard. Obviously I do not accept this due to all the other defects but this clearly shows that Mr Gosch’s ability to paint a car is well below industry standard and he is trying anything he can do get out of paying his debts for ripping off a hard working Australian paid him in full for work an apprentice would be embarrassed about.Further to, for Mr Gosch to say I made a poor financial decision when selling the car, I am a licensed motor dealer and have been for over eight years - I am in a far better informed [position] when it comes to the value of cars, not Mr GoschThe only poor financial decision I made was trusting Mr Gosch with a vehicle of such high value to perform works that were well beyond his capabilities as clearly proven and agreed to by the informed Member the time.I request the appeal be dismissed immediately and the order for the payment of $10,000 be paid within 7 days or I will continue with the garnishee over Mr Gosch’s personal and business bank accounts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In support of that statement, the Appeal Tribunal drew on observations of the Supreme Court in Pires v DibbsBarker Canberra Pty Limited regarding the need for evidence to make findings of fact and the reliability of the evidence:10. Thus, as Kiefel J observed in Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 at 585-6; [25], decisions must not be made without evidence having probative force, inferences must not be drawn without evidence and the tribunal must not base its conclusion on its own view of a matter which requires evidence.11. Recently, the Full Court of the Federal Court of Australia has given some quite detailed consideration of the relevance of the rules of evidence in hearings by tribunals not bound by such rule. Thus, in Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540, the Court considered common law principles such as those set out in cases such as Browne v Dunn (1894) 6 R 67 at 70-1 and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 347, 361-2 do not apply as rules of law in such tribunals, which I consider includes the ACAT, though the underlying principles of fairness, natural justice, reliance on credible and relevant evidence which underpin those rules remain applicable. The approach is to be determined from the circumstances of the precise case.12. In this case, neither party adduced any evidence on oath and much of the oral evidence was given in a rather conversational style, though it appears both parties had made written statements. This is not to criticise the procedure; indeed, such informality can be quite appropriate as long as the parties have the full opportunity to put their cases, the issues are made clear so that each party can address them and the appeal tribunal or this Court can ascertain with appropriate clarity the facts found from credible and reliable evidence and the reasons for decision.[16][16] [2014] ACTSC 283 at [10] – [12] Along the same lines, in Giusida Pty Limited v Commissioner for ACT Revenue the Supreme Court said:39. 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.40. 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.[17][17] [2016] ACTSC 275 at [39] – [40] The question then becomes whether there was sufficient evidence of reliability and reasonable substance to support an order requiring Mr Gosch to repay $10,000 to Mr Copley. It is apparent the original tribunal understood this obligation. We note the following exchange:SENIOR MEMBER: And how do you calculate the $10,000, Mr Copley? Explain that to me in detail.MR COPLEY: I haven’t calculated it. You just asked what would I would accept as a reasonable solution.SENIOR MEMBER: I know. But this is not a resolution by settlement. This is me hearing your case and having to understand what it is you claim and being able to justify a finding in your favour at all and then if I do, for what amount.MR COPLEY: Yes. Yes. Yes. Yes.SENIOR MEMBER: So, you have to tell me how you calculate a figure that I might be inclined to award to you if I am inclined to make an award at all.MR COPLEY: Sure. No problem. So I touched on it before. So the total paint job was $14,600. And as I said, he did do work on the car. Obviously, he has done work, you know, it’s a different colour than what it originally was. But it’s no where near acceptable. So, given that he has done some work on the car, I, you know, decided – I suggested to bring down that figure. Instead of paying me $14,600 to get a new respray, why don’t we make it $10,000. You know, that covers his labour time, you know, and the materials time, or vice versa, and I recover some of the money that I have lost. That’s how I came to that calculation. If that’s not right, yes, well just the total cost of the respray.SENIOR MEMBER: All right. Do you have anything else to say?MR COPLEY: No. Just everything that I have relied on in my statement and evidence.[18][18] Transcript of original proceeding, 7 August 2023, page 7, lines 1 - 32