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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
SubordinateLegislation cited: ACT Civil and Administrative Tribunal Procedure Rules
(No 2) 2009 r 21
Cases cited: Lukatela v Birch [2008] ACTSC 172Mansour v Dangar [2017] ACAT 49Puri v Iconic Markets and Events Pty Ltd [2019] ACAT 28
Tribunal: Presidential Member E Symons
Date of Orders: 22 March 2019Date of Reasons for Decision: 22 March 2019
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 52/2018
BETWEEN:
FYSHWICK AUTOMOTIVE PTY LTDAppellant
AND:
ALAN MICHAEL BRETHERTONRespondent
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.
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11. On or about 5 April 20181 John McGrath Ford carried out repairs to the vehicle.
Mr Bretherton paid $1,031.80 for the repairs.
The original tribunal proceedings
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.
1 John McGrath Ford Service Tax Invoice FMFGH85368 dated 16 April 2018
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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
2 Transcript of proceedings 9 November 2018 page 4, lines 25-32
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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
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.
3 Transcript of proceedings 9 November 2018 page 5, lines 4-7
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(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.
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(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.
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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:
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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 NRMA4 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
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”
9
calls he said he made to the applicant … choosing to characterise Mr Bolton’s evidence in that regard as “no evidence”.
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 submitted5 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.”
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
5 Appellant’s list of errors pursuant to directions dated 21 December 2018 [18]
10
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
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 Ltd7 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:
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]
6 Appellant’s list of errors pursuant to directions dated 21 December 2018 [19]
7 [2019] ACAT 28 [54]-[56]
11
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
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
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
12
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.
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.
9 Transcript of proceedings 9 November 2018 page 44
13
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 stated10 that “the company employs, on average, 6
mechanics and tyre technicians” (emphasis added by Counsel for the appellant).
The Original Tribunal said11 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
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
10 Statement of Troy William Bolton dated 27 August 2018 [7]11 Transcript of proceedings 9 November 2018 page 9, lines 2-412 Transcript of proceedings 9 November 2018 page 7, lines 6-9
14
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
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
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
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
49. Both the Original Tribunal and Mr Bretherton overlooked that explanation in
favour of an explanation which was clearly wrong.
13 Transcript of proceedings 9 November 2018 page 8, lines 37-3914 Transcript of proceedings 19 September 2018 page 94, lines 37-46
and page 95, lines 6-1415 Transcript of proceedings 19 September 2018 page 87, line 1016 John McGrath Ford Service Tax Invoice FMFGH83613 dated 22
March 2018
15
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.
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
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
17 Respondent’s submissions filed 29 January 2019 [3]18 Respondent’s submissions filed 29 January 2019 [5]19 Respondent’s submissions filed 29 January 2019 [8]
16
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
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
20 Respondent’s submissions filed 29 January 2019 [11]
17
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
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
21 Mansour v Dangar [2017] ACAT 49 [18]-[19]
18
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
65. Counsel submitted that the hub locator argument was a “red herring”.23
The Appeal Tribunal agrees.
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.
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.
22 Transcript of proceedings 13 March 2019 page 8, lines 28-3123 Transcript of proceedings 13 March 2019 page 8, line 3324 Transcript of proceedings 9 November 2018 page 9, lines 29-31
19
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
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
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
25 John McGrath Ford Service Tax Invoice FMFGH853 dated 16 April 2018
26 See footnote 8, above27 Transcript of proceedings 9 November 2018 page 9, lines 7-10
20
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
21
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.
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 evidence30 that he saw marks on the wheel
nuts of that wheel consistent with someone tampering with the wheel nuts by
28 Transcript 9 November 2018 page 13, lines 32-3329 ACAT Act section 8 states “To remove any doubt, the tribunal need
not comply with the rules of evidence applying in the ACT”30 Statement of Troy William Bolton dated 27 August 2018 [24]-[26]
22
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.
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
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
31 Transcript of 9 November 2018 page 8, lines 37-39
23
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
24
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, eitherorally in a hearing, by written statement or in another way; and(d) may make an order confirming, amending or setting aside theorder 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
32 [2008] ACTSC 99
25
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 …
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
26
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
27
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
28