Milenkovic v West (Appeal) - [2024] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MILENKOVIC v WEST (Appeal) [2024] ACAT 63

AA 16/2024 (XD 1055/2023)

Catchwords: APPEALS – civil dispute – where Original Tribunal adjourned the hearing several times to allow respondent to locate her expert witness – where the Original Tribunal asked appellant whether it was okay for it to read respondent’s late evidence but did not ask him whether he objected to it – where Original Tribunal intervened in hearing with questions – whether a reasonable apprehension of bias arose – whether Original Tribunal erred by disregarding certain evidence
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:Adam v R [2001] HCA 57
Amer v Eriksson (Appeal) [2019] ACAT 108
CDJ v VAJ(No 1) [1998] HCA 67
Charisteas v Charisteas [2021] HCA 29
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112
Hamod v New South Wales [2011] NSWCA 375
Hobbs v ACT Planning and Land Authority & Anor (Administrative Review) [2022] ACAT 76
Hurst-Myers v Aulich Civil Law Pty Ltd (Civil Dispute) [2020] ACAT 56
Ikechukwu v Duong (Appeal) [2018] ACAT 97
Johnson v Johnson (No 3) [2000] HCA 48
Kolodzeij v Ali & Anor (Appeal) [2021] ACAT 114
Krutsky v Commissioner for Social Housing (Appeal) [2023] ACAT 68
LP 202001 v Council of the Law Society of the ACT (Appeal) [2022] ACAT 80
Mansour v Dangar (Appeal) [2017] ACAT 49
Re JRL; Ex parte CJL (1986) 66 ALR 239
Vakauta v Kelly (1989) 87 ALR 633

AppealTribunal:  Presidential Member J Lucy
Date of Orders and Reasons:       27 August 2024
Date of Publication:  3 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 16/2024

BETWEEN:

BOBAN MILENKOVIC
Appellant

AND:

RAELENE WEST
Respondent

APPEAL TRIBUNAL: Presidential Member J Lucy
DATE:27 August 2024

ORDER

The Tribunal orders that:

The appeal is dismissed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

Introduction

This is an appeal from a decision of the Original Tribunal that a concreter pay a homeowner $20,017, to compensate the homeowner for paying for a defective concrete slab and driveway installed by the concreter, and for the cost of its removal.
I have found that the Original Tribunal did not make any of the errors identified by the concreter. Accordingly, I have dismissed the appeal.

Background

The respondent, Ms Raelene West (the homeowner), engaged the appellant, Mr Boban Milenkovic (the concreter), to carry out concreting work at her home. The work involved the construction of a concrete slab for a carport and a concrete driveway.
The homeowner brought proceedings in the tribunal claiming that the concreter’s work was defective. Both parties relied on expert evidence relevant to the question of whether the concreting work was done in a proper and workmanlike manner.
The Original Tribunal accepted the evidence of the homeowner’s expert, Mr Damien Moloney, that the work was defective, and that the only way to fix the defects was to remove the slab and the driveway and to replace them. The main defects found by the Original Tribunal were that: the slab was not 100 millimetres thick throughout, as required by the contract; the joins between pours were defective; and the slab had not been designed so that water would naturally flow off it.
The Original Tribunal ordered the concreter to pay the homeowner $19,382 in damages, plus the filing fee of $635.

Appeal grounds

On appeal, the concreter identified the errors of fact or law made by the Original Tribunal as being the following:
(a)The senior member allowed the homeowner to submit further evidence on the day of the hearing. The senior member told the concreter to decide during the adjournment whether it was okay for him to read the further evidence, and asked the concreter again whether it was okay to look at that evidence. The concreter was not asked if he objected to the evidence or told he had the right to object to it. He was not made aware that he too could include further evidence.
(b)The case was adjourned four times and delayed for a total of four hours due to the homeowner’s expert witness not being present and being unreachable.
(c)Photo evidence provided by the homeowner was not labelled correctly or dated.
(d)The Original Tribunal disregarded key evidence.
(e)The extent to which the senior member intervened during the hearing demonstrates apprehended bias.

Nature of the appeal

An appeal tribunal may, as it considers appropriate, deal with an appeal as a new application, or as a review of all or part of the Original Tribunal’s decision.[1] Generally, the appeal tribunal determines how it is going to deal with an appeal at the first directions hearing.[2]
[1] ACT Civil and Administrative Tribunal Act 2008 s 82(1)
[2] Mansour v Dangar(Appeal) [2017] ACAT 49 at [23]
At the hearing of the appeal, I confirmed with the parties that the appeal was being dealt with as a review of the Original Tribunal’s decision. The parties did not object to that course.
In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows:
For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)
I have adopted that approach to an appeal by way of rehearing in this case.

Leave to rely on additional evidence

The concreter sought to rely upon additional evidence for the purposes of his appeal. The homeowner opposed the admission of this additional evidence.
Section 82(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way. Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.
The proposed new evidence included:
(a)Print-outs from websites showing that the homeowner had listed her property for sale, with the advertisement referring to the driveway in positive terms;
(b)Online reviews of the concreter’s work;
(c)A witness statement made by Mr Michael Campanaris, dated 26 February 2024;
(d)A witness statement made by Mr Michael Campanaris, dated 30 May 2024;
(e)A witness statement made by Ms Monica Morales dated 18 May 2024;
(f)Some additional photographs;
(g)A letter from the concreter’s general practitioner, dated 16 November 2023, stating that he had been under significant stress and that this had caused chronic insomnia;
(h)A page providing information about types of concrete cracks.
Ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[3]
[3] Hurst-Myers v Aulich Civil Law Pty Ltd (Civil Dispute) [2020] ACAT 56 at [24], citing CDJ v VAJ(No 1) [1998] HCA 67; LP 202001 v Council of the Law Society of the ACT(Appeal) [2022] ACAT 80 at [43]
The overarching principle to be applied, when considering whether to allow new evidence on appeal, is whether that would be in the interests of justice.[4] Whilst it is not usually in the interests of justice to allow new evidence on appeal, in some cases it may be, if there is an acceptable reason for the evidence not being brought at the original hearing, and the evidence is likely to have produced a different result.[5] A material consideration when deciding whether to give an appellant leave to rely on further evidence on an appeal conducted by way of a rehearing, is whether the evidence is likely to have affected the outcome of the decision made at first instance.[6]
[4] Kolodzeij v Ali & Anor (Appeal) [2021] ACAT 114 at [12(f)]; Amer v Eriksson (Appeal) [2019] ACAT 108 at [19]
[5] Amer v Eriksson(Appeal) [2019] ACAT 108 at [20]
[6] Krutsky v Commissioner for Social Housing(Appeal) [2023] ACAT 68 at [7]; Amer v Eriksson(Appeal) [2019] ACAT 108 at [20]
Turning to the additional evidence the concreter sought to adduce on appeal, the online reviews of the concreter’s work could have been obtained prior to the hearing before the Original Tribunal. The concreter has not provided a reasonable explanation for not obtaining that evidence then. The reviews are also hearsay statements, and they are not probative of the question of whether the concreter’s work at the homeowner’s property was defective.
The concreter also sought to include a review apparently posted by the homeowner before the hearing before the Original Tribunal, stating that she would not recommend him, that the quality of work was poor, and making a number of specific criticisms of his work. The review was available at the hearing and is not relevant to any of the concreter’s grounds of appeal.
The concreter sought to rely upon a statement of a co-worker, Mr Michael Campanaris.
Mr Campanaris’ first statement was made before the Original Tribunal hearing but was not in evidence. In that statement, Mr Campanaris stated that he is a qualified builder and that he assisted the concreter with the job at the homeowner’s property. Mr Campanaris made several observations about the piers and the pouring of the concrete. Mr Campanaris also stated that on 16 June 2023, he twice heard the homeowner say, in relation to the driveway, “it’s looking good.” He also made some comments about the thickness of the slab and stated that he could attest that the concrete driveway was structurally sound.
Ms Monica Morales, the concreter’s authorised representative, explained at the hearing of the appeal that the concreter had received Mr Campanaris’s first statement before the original hearing, but after the date on which he was directed to provide all of his evidence. Ms Morales submitted that the concreter was overwhelmed and it escaped him to mention the existence of the report to the Original Tribunal. Ms Morales said that the concreter wanted Mr Campanaris to give evidence, but because the concreter had introduced him as a support person, Mr Campanaris was not allowed to talk.
I have decided not to admit Mr Campanaris’ first statement. Not only could it reasonably have been obtained before the hearing, it was obtained before the hearing. I am also satisfied that there is no unfairness on the part of the Original Tribunal in not allowing Mr Campanaris to talk. At the beginning of the hearing, the Original Tribunal member told Mr Milenkovic that he had to “do the talking.” The senior member asked Mr Milenkovic if he was representing himself and he replied: “Yes. I’ve also got a support person, Michael Campanaris; and my building inspector, Nick Broadhurst.” It was in this context that the senior member later said to Mr Campanaris, when Mr Campanaris responded to a question that the member had directed towards Mr Milenkovic, “you’re not to speak…. You’re the support person.”[7]
[7] Transcript of hearing dated 26 February 2024, page 18, lines 1-5
The Original Tribunal member gave Mr Milenkovic an opportunity to say that he wished to submit additional documents. The senior member asked Mr Milenkovic if he wanted to rely on the bundle of ten documents in his response. After Mr Milenkovic indicated that he did, the following exchange occurred:
SENIOR MEMBER: Does that contain all of the documents that you want to rely on in this hearing?
MR MILENKOVIC: Yes. Yes, that's all my documents. They're all in there.
SENIOR MEMBER: They're all in there?
MR MILENKOVIC: Yes, I've submitted everything.
SENIOR MEMBER: All right.
MR MILENKOVIC: Yes.
SENIOR MEMBER: Is there anything additional that you want to submit today?
MR MILENKOVIC: Only this piece of evidence for the mesh reinforcement.[8]
[8] Transcript of hearing dated 26 February 2024, page 17, lines 19-37
In circumstances where the concreter expressly told the Tribunal that he had no further documents to submit, and had an opportunity to say that he would like to submit Mr Campanaris’ first statement, it would not be in the interests of justice to allow him to rely upon that statement on appeal.
For similar reasons, it would not be in the interests of justice to allow Mr Milenkovic to rely upon Mr Campanaris’ second statement for the purposes of his appeal. That statement could reasonably have been obtained before the hearing. It provides evidence of events occurring before the hearing, and provides Mr Campanaris’ opinion about matters on which he could have opined before the hearing. No acceptable reason has been provided for the evidence not being brought at the original hearing.
Ms Morales’ witness statement attests to matters occurring after the hearing, being a property inspection of the home on 27 April 2024, and a conversation with the real estate agent on that day. If accepted, the statement would tend to prove that:
(a)The homeowner listed her home for sale;
(b)The agent described her as a “property flipper” who knows what she’s doing;
(c)The agent represented that the driveway had been “done to the highest standards”;
(d)It would be possible to put in a carport and the piers are in place;
(e)The clothesline had been removed and a new one had been constructed in a different location.
The concreter also wishes to rely upon property sale documents including a presale report and copies of website advertisements for the property.
Although Ms Morales’ statement and the property sale documents could not reasonably have been obtained before the hearing, the evidence is not likely to have produced a different result. None of the matters which the statement tends to prove, and nothing in the sale documents, is likely to have affected the Original Tribunal’s decision. The Original Tribunal relied upon the expert evidence of Mr Moloney to conclude that the work was not done in a proper and workmanlike manner, because (among other things) water pooled on the slab and the slab is not 100 millimetres thick in some places. The proposed additional evidence would not change those findings.
As for the evidence that the clothesline had been removed, the Tribunal awarded the homeowner $200 to compensate her for the clothesline which the concreter damaged, taking into account its age. The circumstance that the homeowner bought a new clothesline and relocated it is immaterial. The concreter says in his appeal documents that the homeowner told him, before he did the work, that she was planning to replace her old clothesline with a different one and to put it in a different location. If this is relevant to damages, it is evidence which could have been led at the hearing.
For the same reasons, the printouts from websites showing that the homeowner had listed her property for sale, with the advertisement referring to the driveway in positive terms, are unlikely to have affected the outcome of the hearing.
The additional photographs on which the concreter sought to rely, including photographs of piers, depicting the size of mesh, could reasonably have been obtained at the time of the hearing. The photographs are not, in any event, likely to have made a difference to the outcome, because the Original Tribunal did not rely upon any defect in the piers or the mesh size when finding that the concreter’s work was defective.
The letter from the concreter’s general practitioner, dated 16 November 2023, stating that he had been under significant stress and that this had caused chronic insomnia, is not relevant to the issues which were determined at the Original Tribunal. It has some relevance to the submission put on behalf of the concreter, on appeal, that he felt overwhelmed and stressed at the time of the hearing and that this explains some of his conduct (such as not tendering Mr Campanaris’ report and not seeking an adjournment). Ms Morales also told the Appeal Tribunal that the letter was handed up at the original hearing. I have admitted it on that basis.
The other additional evidence on which the concreter sought to rely was available, or could reasonably have been obtained, at the time of the hearing.
For these reasons, I have decided not to admit any of the additional evidence on which the concreter wished to rely, with the exception of the letter from his general practitioner dated 16 November 2023.
The homeowner also sought to rely upon additional evidence which was annexed to her response to the appeal. Much of this evidence responded to the concreter’s proposed additional evidence. The homeowner sought to rely upon photographs which she said showed further defects which had appeared on the driveway since the original hearing.
It is not in the interests of justice to admit any of the homeowner’s proposed additional evidence and I have decided not to do so.

Ground 1: Further evidence tendered at the Original Tribunal hearing

The first ground of appeal is, in summary, that the homeowner was allowed to tender further evidence on the day of the hearing, but the concreter was not asked whether he objected or told that he could also tender further evidence.
This ground of appeal raises the question of the Tribunal’s obligation to a self-represented litigant. In the context of court proceedings, it has been said that courts have a duty to ensure a fair trial. A judge has a duty to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. However, it is not the function of the court to give judicial advice to the self-represented litigant.[9]
[9] Hamod v New South Wales [2011] NSWCA 375 at [309]-[311], cited in Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [103]
The same principles apply to a tribunal.[10]
[10] Hobbs v ACT Planning and Land Authority& Anor (Administrative Review) [2022] ACAT 76 at [46]; Ikechukwu v Duong (Appeal) [2018] ACAT 97 at [51]
A court or tribunal’s duty to a self-represented litigant is bound up with the obligation to act in a procedurally fair manner.[11] In this case, I am not persuaded that the Original Tribunal denied the concreter procedural fairness or otherwise acted unlawfully by not expressly telling the concreter that he could apply to tender further evidence, or by not expressly asking him whether he objected to the homeowner’s additional evidence. That was implicit in the senior member’s dialogue with the parties.
[11] Ikechukwu v Duong(Appeal) [2018] ACAT 97 at [51]
The senior member said to the concreter, “[i]s there anything additional that you want to submit today?”[12] This was an invitation, in plain English, to apply to tender further evidence. There was no error in that respect.
[12] Transcript of hearing dated 26 February 2024, page 17, lines 33-34
The homeowner told the Original Tribunal that she wanted to “submit another document for evidence.” She described it as “a response that I've put together in response for Mr Milenkovic’s letter.” The senior member said:
I'm going to allow Mr Milenkovic to read that over the luncheon adjournment. If you can remind me at 2 o'clock, Ms West, in relation to that document, because he needs an opportunity to have a look at it and see whether it causes him any concern.[13]
[13] Transcript of hearing dated 26 February 2024, page 16, lines 25-29

The following exchange then occurred between the senior member and the concreter:
SENIOR MEMBER: I'll let you read that during the lunch break.
MR MILENKOVIC: Yes.
SENIOR MEMBER: And to decide whether it's okay for me to read it.[14]
[14] Transcript of hearing dated 26 February 2024, page 16, lines 37-41
After the luncheon adjournment, another exchange took place between the senior member and the concreter in relation to the homeowner’s proposed additional evidence as follows:
SENIOR MEMBER: Ms West wants to tender that. She wants me to look at it and read it. My first question is whether it's okay for me to look at it?
MR MILENKOVIC: Yes. That's fine.
SENIOR MEMBER: Okay. Thank you. Was that yes, I can look at it?
MR MILENKOVIC: Yes.[15]
[15] Transcript of hearing dated 26 February 2024, page 54, lines 25-32
The senior member did not use the word “object” in relation to the additional evidence. However, I am satisfied that the concreter was given an opportunity to object to the new evidence and could have done so when the senior member asked the concreter whether he could look at the new evidence. The senior member also asked the concreter towards the end of the hearing whether there was anything else he wanted to say and he said there was not.[16]
[16] Transcript of hearing dated 26 February 2024, page 82, line 46 and page 83, line 1
The concreter submitted that the Tribunal member should have advised him that he had the right to object to the new evidence. Before the luncheon adjournment, the senior member had told the parties that he wanted the concreter to have a look at the proposed evidence to see if it caused him any concern. The senior member also made it clear that he wanted to hear the concreter’s views as to whether it was okay for the member to read the new evidence. That was sufficient, in my view, to discharge the Tribunal’s duty to explain its procedure. The concreter was put on notice that he could express concerns about the new evidence and tell the member that he did not want the member to read the new evidence. It was not necessary for the member to advise him, expressly, that he could object to it.
I am not persuaded that the proceedings were conducted in a procedurally unfair way or that the Tribunal did not discharge its duty to the concreter, as a self-represented litigant, to explain relevant matters of practice and procedure.
This ground is dismissed.

Grounds 2 and 5: Adjournments, interventions and apprehended bias

The concreter’s second ground of appeal is that the case was adjourned four times and delayed for four hours due to the homeowner’s witness not being available.
Adjourning a hearing because a witness is not available does not constitute an error of law. The concreter did not object to the adjournment and did not claim, at the Original Hearing, to have been disadvantaged by it.
Ms Morales submitted, in oral submissions, that the multiple adjournments gave rise to a reasonable apprehension of bias. The concreter’s fifth ground of appeal was that the extent of the Tribunal member’s interventions during the hearing demonstrated apprehended bias. As the second and fifth grounds both raise apprehended bias, I have dealt with them together.
The test for establishing apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question that it was required to decide.[17] An apprehension of bias must be firmly established.[18]
[17] See, for example, Charisteas v Charisteas [2021] HCA 29 at [11]
[18] Re JRL; Ex parte CJL (1986) 66 ALR 239; Vakauta v Kelly (1989) 87 ALR 633, Dawson J page 575, Toohey J page 585
The multiple adjournments do not firmly establish an apprehension of bias. The Tribunal adjourned the hearing so that the homeowner had a reasonable opportunity to contact her expert witness and to present her case. The senior member had also adjourned the proceedings when the matter had been listed a month earlier in January, and the concreter had not received relevant documents. In the February hearing, the senior member told the homeowner that if she could not locate her witness on the day, she was “going to have to apply for this matter to be adjourned, but that’s going to create all sorts of difficulties.”[19] The senior member did not say what the outcome of any application to adjourn the hearing to another day would be. The senior member pointed out that it was “not the tribunal's role to get [the homeowner’s witness] here.”[20]
[19] Transcript of hearing dated 26 February 2024, page 15, lines 19-21
[20] Transcript of hearing dated 26 February 2024, page 15, line 10
When the adjournments are understood in the context of these other matters, I am not persuaded that a fair-minded lay observer might reasonably apprehend, as a result of the adjournments, that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the issues before it.
Ms Morales referred to other matters which, she submitted, also gave rise to a reasonable apprehension of bias. One of the matters on which she relied as creating apprehended bias was a comment made by the Tribunal member to the homeowner, being:
SENIOR MEMBER: You can make a submission about that, if you want to cross-examine your own witness, but I would suggest you don't do it.[21]
[21] Transcript of hearing dated 26 February 2024, page 70, lines 5-6
Ms Morales submitted that the senior member was assisting the homeowner and giving her advice.
The Original Tribunal member’s comment was made in response to the homeowner asking questions of her expert witness, Mr Moloney, which challenged an aspect of his evidence. The Original Tribunal’s comment was in the nature of explaining tribunal procedure to a self-represented litigant. Generally, at least in court proceedings, a party needs leave to cross-examine the party’s own witness.[22] That is partly because cross-examining a party’s own witness gives the party an unfair forensic advantage, where the party or the party’s representative would normally be limited to asking non-leading questions. In that context, the advice to the homeowner not to cross-examine her own witness did not create the impression that the senior member was partial to the homeowner, or “entering the fray.” It was a way of managing the proceedings in an orderly way, where the parties did not appear to understand usual tribunal procedure.
[22] See, for example, Adam v R [2001] HCA 57
The concreter contends that the Original Tribunal member intervened excessively in the hearing, in a way which gave rise to apprehended bias. Very few submissions were made about this, other than in relation to the interventions identified above.
Excessive intervention by a judge or tribunal member is capable of giving rise to apprehended bias.[23] However, the context is important. These were not court proceedings, but proceedings in a tribunal with self-represented litigants. The Original Tribunal was entitled to conduct the proceedings inquisitorially, asking the parties questions, as long as it maintained its impartiality. Whilst the senior member asked both parties and their experts questions, he did not do so in a way which gave rise to an impression that he was partial to one party, that he had prejudged the outcome, or that he might decide the case otherwise than on its merits.
[23] See, for example, Johnson v Johnson (No 3) [2000] HCA 48
Other matters said by the concreter to establish a reasonable apprehension of bias do not do so, either taken on their own or cumulatively. One of these is giving the concreter 20 minutes to read a document in a break which would take more than 20 minutes to read. In circumstances where the concreter did not object, I could not conclude that this was unfair or that the document would necessarily take longer to read. Further, the homeowner submits that the adjournment was longer than 20 minutes.
I am not satisfied that, as a result of any of the matters raised by the concreter, a fair-minded lay observer might reasonably apprehend that the Original Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the questions that it was required to decide.
Grounds 2 and 5 are dismissed.

Ground 3: Homeowner’s photographic evidence wrongly labelled and dated

The concreter contends that photo evidence provided by the homeowner was not labelled correctly or dated. Even if that were so, the concreter has not identified any factual or other error made by the Tribunal in relation to the photographs, let alone one which is likely to have affected the outcome.
This ground is dismissed.

Ground 4: Disregarding key evidence

The concreter’s fourth ground is that the Original Tribunal disregarded key evidence.
Ms Morales made oral submissions in support of this ground on behalf of the concreter and the concreter also made some written submissions pertaining to this ground.
Ms Morales submitted that the Tribunal did not take into account certain concessions made by Mr Moloney’s evidence. Ms Morales took the Appeal Tribunal to the following parts of the transcript:
SENIOR MEMBER: I think what Ms West is concerned about is that above - and correct me if I'm wrong, Ms West - above the piers, the slope is not consistent - the slopes are not consistent.
…
SENIOR MEMBER: … I'll put it a different way, Mr Maloney [sic]. If it had been a problem you would have identified it, correct, because your job was to identify problems with the slab?
WITNESS [MALONEY [sic]]: Correct.[24]
[24] Transcript of hearing dated 26 February 2024, page 69, lines 11-14 and 29-33
Ms Morales also took the Appeal Tribunal to Mr Moloney’s evidence that the slope of the slab complied with the standard for “Levelness of concrete floors” in what he described as the “2015 standards and tolerances guide from Victoria that have been adopted by the ACT government.”[25]
[25] Transcript of hearing dated 26 February 2024, page 67, line 27 to page 68, line 6
I am not satisfied that the Original Tribunal did not take these concessions into account. The Tribunal’s finding that the work was defective was not based upon the consistency of the slope. The Tribunal found that there were portions of the slab which were less than 100 millimetres thick (contrary to the requirements of the contract) and that there were defects of workmanship, particularly in relation to the joins between the pours.[26] The Original Tribunal also found that there was pooling of water which was indicative of not having laid the slab in a way where water would naturally flow off it.[27] Mr Moloney agreed that the pooling was indicative of defective work on the part of the concreter.[28]
[26] Transcript of hearing dated 26 February 2024, page 86, lines 31 to 39
[27] Transcript of hearing dated 26 February 2024, page 86, lines 10 to 14
[28] Transcript of hearing dated 26 February 2024, page 77, lines 11 to 15
Ms Morales referred the Appeal Tribunal to the Original Tribunal’s comment that Mr Moloney’s expertise is not in interpreting photographs, and submitted that interpreting photographs was exactly what Mr Moloney did. Ms Morales took the Appeal Tribunal to a passage in which the concreter, when cross-examining Mr Moloney, asked him about the mesh which had been used, and Mr Moloney responded, “we’re just going off what … the photos supplied to us and we were asked to make comments.”[29] Ms Morales submitted that, on the basis that Mr Moloney was relying upon photos supplied to him and what the homeowner had told him, his opinion should not have been accepted.
[29] Transcript of hearing dated 26 February 2024, page 74, lines 18-19
The Original Tribunal was aware that Mr Moloney relied upon photographs supplied to him and the homeowner’s instructions, and had also heard Mr Moloney’s evidence that he had inspected the slab onsite. The circumstance that Mr Moloney relied upon photographs to some extent does not mean that the Original Tribunal was not entitled to rely upon Mr Moloney’s opinion evidence. The concreter did not establish that the photos supplied to Mr Moloney or the homeowner’s instructions were inaccurate in a material respect.
Ms Morales submitted that, whilst the homeowner’s case was that the concreting was not done to specifications, the concreter followed the homeowner’s instructions based upon a diagram her father drew. Ms Morales submitted that the Original Tribunal did not take that into account.
Ms Morales also submitted that the Tribunal did not take into account the evidence of the concreter’s expert, Mr Nick Broadhurst, that photographs in evidence of the concreting job when it had just been completed showed slurry on the top. Mr Broadhurst gave evidence that the presence of the slurry was not indicative of poor workmanship because Mr Broadhurst would expect it to be cleaned later.[30] He also said that the work was structurally sound.
[30] Transcript of hearing dated 26 February 2024, page 47, lines 10-44
Ms Morales emphasised that the homeowner had admitted to walking on the concrete before it had set. She made a further submission that the measurement of the concrete at its edge as being less than 100 millimetres did not mean that the rest of the slab was less than 100 millimetres thick.
I asked Ms Morales whether any of these submissions had been made to the Original Tribunal. She said that the concreter was not in a state to be at the hearing that day and had not made the submissions. Ms Morales referred to the medical certificate which she said the concreter gave to the member. When I asked her whether the concreter had sought an adjournment, she conceded that he had not done so.
The medical certificate was dated 16 November 2023, being over three months before the hearing. It stated that the concreter had been “under significant stress recently” which had “affected his sleep pattern” and “caused chronic insomnia.” The certificate stated that the general practitioner had commenced him on medication and would organise a mental health care plan for psychology interventions next week. There was nothing before the Original Tribunal to indicate whether the concreter was, at the time of the hearing, suffering from any mental health issues.
I accept that the concreter found the proceedings before the Original Tribunal stressful and may not have felt that he was in a good position to make submissions due to his emotional or mental state. However, it does not follow that the Tribunal made any error. The Tribunal’s task is to assess whether the applicant has established his, her or its case on the balance of probabilities. It is generally not required to consider matters which the parties have not raised in submissions.
The matters raised by Ms Morales on appeal are matters upon which the concreter had an opportunity to make submissions at the hearing. Even if he had done so, however, none of those matters would have affected the Original Tribunal’s key finding that the concrete slab was not uniformly of the thickness required by the contract.
I am not satisfied that the Original Tribunal “disregarded” any of the evidence upon which the concreter relied to establish this ground. The concreter has not persuaded me that the Original Tribunal made an error of law in the way in dealt with the evidence or that it has made any material error of fact.
Accordingly, this ground is dismissed.

Conclusion

The concreter has not identified any material errors in the decision made by the Original Tribunal. For these reasons, I have dismissed the appeal.

………………………………..

Presidential Member J Lucy

Dates of hearing:	2 July 2024
Appellant:		Ms M Morales, authorised representative
Respondent:		In person