Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36

Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36

The appeal succeeded on a question of law because the Tribunal's reasons did not expose its reasoning process or adequately evaluate the competing expert evidence on causation. In particular, the Tribunal did not explain why it rejected the appellant's expert evidence, why it implicitly preferred the respondent's expert evidence, or how it treated matters such as the expert's limited instructions, lack of physical inspection, passage of time, and vehicle use. That failure meant the reasons did not comply with s 62(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and constituted an error of law. Because the Appeal Panel did not have a full transcript and was not in a position to...

Jurisdiction
Australia
Judgment Date
08 March 2024
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision Concerning Compensation for Alleged Damage Caused by Installation of Vehicle Accessories / Appeal Panel Decision
Outcome
Appeal allowed; first instance orders set aside; proceedings remitted to the Consumer and Commercial Division, differently constituted, for determination.
Legal Topics
['procedural Fairness' 'adequacy of Reasons' 'question of Law on Internal Appeal' 'leave to Appeal' 'evaluation of Expert Evidence' 'remittal to Differently Constituted Tribunal']
['administrative Law' 'civil Procedure' 'consumer and Commercial Disputes'] ['procedural Fairness' 'adequacy of Reasons' 'question of Law on Internal Appeal' 'leave to Appeal' 'evaluation of Expert Evidence' 'remittal to Differently Constituted Tribunal']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision Concerning Compensation for Alleged Damage Caused by Installation of Vehicle Accessories / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal failed to consider or evaluate the appellant's expert evidence such as to deny procedural fairness or constructively fail to exercise jurisdiction." 'Whether the Tribunal provided adequate reasons under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether leave should be granted to extend the appeal to merits grounds that the decision was against the weight of the evidence or not fair and equitable.' 'Whether further evidence concerning damage to other vehicles should be admitted on the appeal.' 'Whether the proceedings should be remitted to a differently constituted Tribunal.']

Ratio Decidendi

The appeal succeeded on a question of law because the Tribunal's reasons did not expose its reasoning process or adequately evaluate the competing expert evidence on causation. In particular, the Tribunal did not explain why it rejected the appellant's expert evidence, why it implicitly preferred the respondent's expert evidence, or how it treated matters such as the expert's limited instructions, lack of physical inspection, passage of time, and vehicle use. That failure meant the reasons did not comply with s 62(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and constituted an error of law. Because the Appeal Panel did not have a full transcript and was not in a position to...

Court Disposition

Appeal allowed; first instance orders set aside; proceedings remitted to the Consumer and Commercial Division, differently constituted, for determination.

Orders

  • ['The appeal is allowed.' 'The orders made by the Tribunal on 6 September 2023 are set aside.' 'The proceedings are remitted to the Consumer and Commercial Division, differently constituted, for determination.']