Dennis v CJD Mechanical Repairs Pty Ltd [2025] QCATA 53

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dennis v CJD Mechanical Repairs Pty Ltd [2025] QCATA 53 PARTIES: SUSAN KAY DENNIS (applicant) V CJD MECHANICAL REPAIRS PTY LTD (respondent) APPLICATION NO/S: APL142-23 ORIGINATING APPLICATION NO/S: Q617-22 (Southport) MATTER TYPE: Appeals DELIVERED ON: 22 May 2025 HEARD AT: Brisbane DECISION OF: A/Senior Member Lember ORDERS: The application for leave to rely on fresh evidence filed 7 June 2023 is refused. Leave to appeal is refused. The application for leave to appeal or appeal filed 17 May 2023 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a minor civil dispute consumer dispute – where claim relates to mechanical services – where no expert evidence – whether error in applying consumer law – whether adequate reasons given – where leave to appeal refused ACCC v Dukemaster Pty Ltd [2009] FCA 682 Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Cachia v Grech [2009] NSWCA 232 Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190 Dearman v Dearman (1908) 7 CLR 549 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 -- 1 of 19 -- 2 EH March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 European Bank Ltd v Evans of Robb Evans and Associates (2010) 240 CLR 432 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15 Hadley v Baxendale (1854) 9 Exch 341 Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ramsay v Fraser [2024] QCATA 72 Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Competition and Consumer Act 2010 (Cth) sch 2, s 18, s 54, s 60, s 61, s 259, s 260, s 262, s 267 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 28, s 122, s 143 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The applicant, Ms Dennis, owns a 1996 Jeep Cherokee to which the respondent, CJD Mechanical Repairs Pty Ltd (CJD) carried out mechanical works between May and December 2020. [2] On 18 November 2022, Ms Dennis filed an application for minor civil dispute - consumer trader dispute seeking a refund of money paid to CJD for their work the subject of invoices rendered 29 May 2020 ($2,366.57), 24 June 2020 ($1,290.11) and 25 November 2020 ($1,352.21), totalling $5,008.89. -- 2 of 19 -- 3 [3] The Tribunal has jurisdiction to hear minor civil disputes,1 including claims arising out of a contract between a consumer and a trader.2 The relief was sought by Ms Dennis pursuant to the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (ACL). [4] By a decision made 10 February 2023, Ms Dennis' application was dismissed by the Tribunal below for want of evidence. Ms Dennis filed an application to reopen the decision, but this was also dismissed. Ms Dennis therefore now seeks leave to appeal, and, if successful, to appeal the dismissal decision.3 In determining whether to grant leave, the Appeal Tribunal must be satisfied that: (a) there is a reasonably arguable case of error in the primary decision,4 (b) there is a reasonable prospect that the appellant will obtain substantive relief,5 and (c) leave is needed to correct a substantial injustice caused by some error,6 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.7 The grounds of appeal [5] Ms Dennis, in summary, relies on the following grounds of appeal: (a) Ground 1 - The ACL was not properly applied, having regard to information contained in ACCC publications on claiming compensation, consumer rights and guarantees and motor vehicles, submissions and evidence filed by Ms Dennis. Specifically, she says the learned Adjudicator: (i) failed to consider s 18 of the ACL (misleading and deceptive conduct), and (ii) did not correctly apply s 60 (guarantee as to due care and skill) and s 61 (guarantee as to fitness for a particular purpose). (b) Ground 2 - Ms Dennis says the learned Adjudicator disregarded material facts and evidence in her application and only relied upon CJD's reply to decide her application. Material evidence disregarded by the learned Adjudicator is said to have included the legal basis to support her compensation claim at the hearing (including her three-page detailed costing and ACCC publications), and the outcome of her complaint to the Office of Fair Trading (OFT). (c) Ground 3 - Ms Dennis says the learned Adjudicator relied upon incorrect or irrelevant information in making the decision, including: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 11. 2 Ibid, Schedule 3 (definition of ‘minor civil dispute'). 3 Ibid, s 143(3). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232, 2. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R388, 389; Mciver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580. -- 3 of 19 -- 4 (i) questions directed to her failure to supply sworn statements of Seven Slot Off Road and Motive Mechanical, even though her application does not mention that she took her Jeep to either of those businesses for the purpose of them assessing CJD's work, and (ii) false and misleading information provided by CJD, which, she says, was relied on to the exclusion of her own. (d) Ground 4 - Ms Dennis says she was denied procedural fairness by: (i) Registry failing to inform her that a reply had been emailed by the respondent on 12 December 2022, (ii) being denied a sufficient opportunity to review CJD's reply filed 12 December 2022, which was only handed to her at the hearing, and (iii) not being permitted by the learned Adjudicator to discuss the legal basis of her compensation order, to tender her supporting information to it, nor to respond to the filed Reply, and (iv) being 'bombarded' by the learned Adjudicator's questions, and by feeling 'very unwell' and 'powerless to do anything about this at the time'. (e) Ground 5 - The learned Adjudicator's reasons were inadequate because they did not consider her evidence or submissions, costings, or information regarding the ACL. Application for leave to rely on new evidence [6] By an application filed 7 June 2023, Ms Dennis seeks leave to rely upon evidence and submissions that are only contained within her application for reopening filed on 28 February 2023 that, she says: (a) explain why she believes ss 18, 60, 61 and 62 of the ACL were contravened, and (b) address three questions asked of her by the learned Adjudicator during the hearing and included in his reasons for the decision. [7] Ms Dennis says that:8 I only provided the material facts and evidence in my application filed on 18 November 2022 and did not explain how I had applied consumer guarantees under Australian Consumer Law (ACL) to support my compensation order because this is all I thought I had to do at this time. [8] In Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 at [7], Senior Member Howard said that: [38] Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case 8 Application for leave to appeal or appeal, Attachment to Part C, page 1, paragraph 1. -- 4 of 19 -- 5 again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice. [39] The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing. [40] In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows: (a) That the evidence could not have been available with reasonable diligence for the original hearing; (b) That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and (c) That the evidence is credible. [9] Ms Dennis has not established that the new evidence was not available with reasonable diligence for the original hearing. It was available to her and entirely within her knowledge at the time of the hearing. [10] Further, the “evidence” comprises: (a) Legal arguments and responses to CJD’s reply, not ‘evidence’. Ms Dennis’ opportunity for making those submissions was in her hearing. (b) ACCC and similar web information, which are not evidence: nor are they law. The minor civil dispute jurisdiction does not encompass all claims under the ACL so not all publications are relevant. Decision makers in minor civil disputes apply laws, rules and regulations but factsheets and webpages about the law are not probative. These publications might have aided Ms Dennis' submissions but are not new evidence which might have been relied upon by the Tribunal below to impact its decision. (c) References to evidence already before the Tribunal. Several new submissions simply direct back to evidence that Ms Dennis filed with her application for a minor civil dispute (the 'A' exhibits). This is not new evidence. (d) Emails between Ms Dennis and Southport Registry that post-date the hearing. These communications are not new evidence of matters relevant to the decision and cannot have impacted the outcome of the hearing. [11] As observed in Ramsay v Fraser [2024] QCATA 72 at [11] an application for leave to adduce fresh evidence is not, and should not be, an attempt to shore up the deficiencies of a party's case at the initial hearing. [12] Leave to rely on the new evidence is refused for those reasons. -- 5 of 19 -- 6 The factual background to the dispute [13] According to her application for a minor civil dispute, Ms Dennis' claim arose from the following circumstances: (a) Ms Dennis purchased her XJ Jeep in May 1996. She has always resided on acreage land in a rural area without access to public transport or nearby family, friends or neighbours and relied on her Jeep to maintain her lifestyle and independence. (b) In February 2019 the Jeep broke down. Ms Dennis says she had experienced difficulties with inexperienced mechanics and faulty repair work since 2014. (c) Until October 2019, Ms Dennis says she was “stranded” on her property due to the breakdown. She had been informed that the Jeep required a new radiator, new water pump and that it had an oil leak. She also understood that the front brake pads needed replacing, that the vehicle was due for a service and for an inspection of the rear brake drums and that the suspension needed repair. A mechanic was to have undertaken these repairs for her, but he kept telling her he was too busy to do the work. (d) Ms Dennis was cost-conscious, with the pension her only source of income and accordingly she set herself a “strict budget for motor vehicle expenses”. (e) On 18 October 2019, Ms Dennis emailed CJD to solicit their interest in repairing the Jeep which had, at that time, travelled 481,420 kilometres and had been off- road for eight months. She received a same day reply from Ms Lesley Stephens, who expressed that she understood Ms Dennis’ attachment to her Jeep and assured that there is nothing that can’t be fixed when she was ready to go ahead.9 (f) By telephone prior to Christmas 2019, and in emails sent on 15 January 2020, 27 March 2020 and 6 April 2020 Ms Dennis reiterated to CJD the importance of her Jeep in her personal circumstances.10 (g) On 6 April 2020, in response to Ms Dennis' request to know when her Jeep could be towed to the workshop, Ms Stephens replied that they were fully booked until the end of April, however they could book her for 1 May for assessment and a quote to return the vehicle to a roadworthy condition,11 a booking that Ms Dennis accepted. (h) On 16 April 2020, Ms Dennis emailed the list of required repairs, including information about a new battery purchased on 14 April 2020 and an update on the oil leak.12 (i) On 24 April 2020, the Jeep was towed to the workshop because the new battery had fully discharged. Ms Dennis drove it a short way on her property so that it was easier to collect and says, therefore, that the engine was running at the time. 9 Attachments A.I and A.2 to the application for a minor civil dispute. 10 Attachments A.3, A.4 and A.5, ibid. 11 Attachment A.6, ibid. 12 Attachment A.8, ibid. -- 6 of 19 -- 7 (j) On 2 May 2020, Mr Paul Stephens contacted Ms Dennis by phone. She made the following note in her diary (but did not tender the diary itself in evidence): He has assessed the battery and ordered some parts for the oil leak. He can't run the engine because of the oil leak until he has done this. He had come across another oil leak which had been temporarily repaired but it needed to be fixed properly. He has not diagnosed anything else. (k) On 14 May 2020, Ms Stephens informed Ms Dennis that Mr Stephens had repaired the oil leaks and that it "was not a major issue". Ms Dennis later spoke to Mr Stephens and was informed that the Jeep needed a new radiator as the previous radiator was not fitted correctly. He was going to source the most cost-effective part, in the vicinity of $300-$400. To diagnose problems in the cooling system, he needed to drive the vehicle. (l) On 28 May 2020, Ms Dennis was informed that her vehicle would be ready the following day, or by 1 June 2020 at the latest. (m) On 29 May 2020 the vehicle was collected by Ms Dennis, and CJD issued Tax Invoice 4263, which noted the following (odometer reading 484,590kms): Found failed oil seals on filter adaptor housing & oil pressure switch failure. Also leaking coolant from radiator (large crack in radiator). Removed & replaced oil seals & oil pressure switch. Washed engine bay of old oil & coolant. Removed & replaced radiator. Pressure tested system. Found failed water pump. Replaced. Fabricated & repaired all broken brackets to radiator & radiator support & fan shroud supports. Other faults repaired: door locks not working. Tailgate loose on latch & not locking. Gas struts not holding on tailgate. Replaced. Seat belts not locking in place. Cleaned & rectified. Customer advised to check brakes. Found: front brake pads & rear brake shoes excessively worn. Replaced. Replaced adjustment spring strap on rear brakes missing. Replaced LH headlight surround & bumper end cap Also mirror adjustment switch broken. Removed & replaced. Washed engine again, cleaned bodywork. Lubricated all locks & hinges on doors. Replaced lightbulb on gearshift level. Reconnected drivers side doorstop strap. Repaired front windscreen washer system. Replaced windscreen wiper blades. Road test vehicle OK… Notes: Very small oil leak from rear main crankshaft oil seal & sump gasket. (n) Ms Dennis says she was informed by Mr Stephens that her vehicle did not require a service, or fuel to be replaced, the suspension did not require repair, -- 7 of 19 -- 8 and that the vehicle was in an “amazing” condition but for another very small oil leak. He had, however, fixed some minor things like tail gate struts while waiting on parts to arrive. (o) Ms Dennis identified these minor fixes as "unauthorised repairs" and says that the door locks were working and did not require repair; the lock was working on the tail gate; the driver's seat belt was locking into place; the passenger's seat belt had not been used in more than ten years; and the mirror adjustment switch was not broken. (p) As Ms Dennis had budgeted $4,000.00 for repairs and had $1,300.00 remaining, she asked CJD to repair the very small oil leak from the rear main crankshaft and sump gasket, estimated to cost $1,300.00, rather than replacing the tires, relying, she says, upon Mr Stephen's advice that there was nothing else wrong with her vehicle. CJD Tax Invoice 4405 dated 24 June 2020 pertained to the crankshaft and sump repair. (q) Shortly after, Ms Dennis says she experienced an occasional intermittent reduction in engine power and difficulty starting the vehicle. On 21 August 2020, she sought RACQ roadside assistance because she could not start her Jeep but, because Mr Stephens had told her the vehicle was in amazing condition, she “did not consider that this would be a serious problem,” and did not seek advice in relation to it, but it worsened. (r) On 15 October 2020, Ms Dennis contacted Mr Stephens who suggested the problem might be the ignition coil or spark plug but he said it should not cause a break down and would not be expensive to fix. (s) On 21 October 2020, Ms Dennis was unable to start the Jeep again and was to arrange a tow to CJD's workshop. The following day the vehicle started but Ms Dennis said she was still advised by Mr Stephens to arrange a tow. (t) On 26 October 2020, Ms Dennis received Quote No 4772 from CJD Mechanical for $1,352.21 to remove and replace the distributor, ignition coil and crank angle sensor. Above the quote, the customer concern was recorded as “vehicle towed to workshop: unable to start intermittently” and included the observation “unable to start without stalling”. Ms Dennis says she interpreted the words “unable to start without stalling” to mean that the Jeep could not be driven unless the repairs were done. She describes having "no option" but to leave the vehicle with CJD for the quoted repairs. (u) Ms Dennis decided to take a no-interest loan to fund the repairs but had to first pay off $250.00 from an existing loan she had taken out for medical expenses. On 6 November 2020, she asked whether CJD could undertake the job urgently once funds were paid to his account because it was only a 1.5-hour job, with parts (a distributor, coil ignition and crank angle sensor) comprising most of the expense. In reply, Ms Stephens confirmed that she would order the parts and, once they arrived, the repairs would be scheduled. (v) On 11 November 2020 funds were deposited to CJD’s account. Parts had still not arrived when Ms Dennis followed the matter up on 16 November 2020 and -- 8 of 19 -- 9 again on 19 November 2020. Ms Stephens explained that freight deliveries had been severely impacted by Covid-19. (w) On 23 November 2020 the vehicle was ready, and Tax Invoice 4772 issued for $1,352.21. Mr Stephens advised Ms Dennis that the Jeep had an oil seal leak in the power steering and that she should check the power steering fluid regularly, as well as keeping her fuel tank at least half-full because the fuel pump needed replacing. Ms Dennis says that keeping a half-tank of fuel was "not a viable option" for her, but she did not dispute the advice or ask questions because she was upset about the "long delay" in getting her Jeep back. (x) By emails exchanged 24 November 2020 Ms Dennis asked which of two power steering fluids she should use and was informed that a fluid with 'stop leak' would suffice. She says she was later informed by a "power steering repair specialist" that the fluid recommended by Mr Stephens has capacity to damage the power steering parts in her Jeep. She did not file evidence of this opinion. (y) Ms Dennis says the vehicle ran poorly from when it was collected and lost power several times while she was driving it on 30 November 2020. (z) On 1 December 2020 the vehicle was towed back to CJD’s workshop at Ms Dennis' insistence. She says Mr Stephens did not run diagnostic tests or link the faults to his repairs on 23 November 2020. Rather, on 7 December 2020 Ms Dennis was informed by Ms Stephens that the reason for the engine failure was because one of the engine cylinder heads needed to be reconditioned and the fuel sensor needed replacing. (aa) On 25 December 2020 Ms Dennis says the power steering hose split and the vehicle was off-road until 16 September 2021 when it was repaired. (bb) On 23 September 2021 Ms Dennis took the vehicle to Seven Slot Off Road at which time the odometer read 485,282 kms. They charged $254.55 for a full inspection of the vehicle, noted several faults, and recommended several repairs. According to their invoice: Conducted full inspection of vehicle. Complete compression test and fuel pressure tests. Complete full inspection mechanically. Fuel pressure is low, requires fuel pump and sensor unit and fuel filter... Found front upper and lower ball joints have play. Front prop shaft transfer case end yoke loose. Rear diff leak from pinion seal and diff cover 3. Automatic transmission pan leaking, requires reseal and service. Transmission mount has sagged. Engine oil leak from rocker cover and head gasket. Upstream O2 sensor wiring has bare wires showing. Air filter is wrong one for vehicle, needs replacing. (cc) On 9 September 2022, the vehicle would not start. On 13 September 2022 Motivate Mechanical undertook diagnostics and their invoice for $297.00 notes: -- 9 of 19 -- 10 Check wiring near distributor found the plug to the distributor with tape falling off. Remove all tape and found wiring touching and touching cylinder block. Cut wiring back to where harness is in good condition and repair. Plus has locking clip broken. Heat shrink cover to stop falling apart. (dd) On 22 September 2022, the Jeep lost power while idling. (ee) On 6 October 2022 Motive Mechanical invoiced Ms Dennis for $695.67 for further diagnostic tests and at first believed they had fixed the problem, but the engine continued to cut out when test driven. An internal fault with the ignition coil was diagnosed and the part needed to be replaced. The invoice also noted that the wiring harness was deteriorating with age and that the odometer reading was 490,755 kms. [14] Ms Dennis’ case is that the cost of the three invoices rendered by CJD should be refunded to her because: (a) Her vehicle was kept at CJD's workshop on three occasions for "an excessive amount of time" knowing that it disadvantaged Ms Dennis to be without her vehicle. (b) CJD carried out unauthorised repairs to the vehicle, beyond what was needed to make the vehicle roadworthy. (c) The steering fluid incorrectly recommended by Mr Stephens on 24 November 2020 may have damaged her vehicle. (d) On 29 May 2020, Mr Stephens lied about the condition of the vehicle, which led Ms Dennis to spend her repair budget on new tires rather than repairs that she says were necessary. On 24 June 2020 Ms Dennis relied upon Mr Stephens' advice to permit the carrying out of a repair to the vehicle that she should have delayed, given her financial circumstances which were known to Mr Stephens. On 23 November 2020, Ms Dennis says the severity of the oil seal leak was misrepresented to her, which meant her vehicle was off-road longer than required when the power streeting hose split on 25 December 2020. (e) The ignition coil supplied on 23 November 2020 was faulty, and the distributor supplied was not correctly installed, leading to further faults occurring that required repair. (f) After spending $5,008.89 with CJD, Ms Dennis was left with a vehicle that was "unsafe to drive and which was off the road from 25 December 2020 until 16 September 2021". A reasonably arguable case of error - the grounds of appeal Ground 1 - Australian Consumer Laws incorrectly applied [15] Section 50 of the Fair Trading Act 1989 (Qld) sets out those claims under the ACL which must be heard in the Tribunal provided the proceeding is one for a “minor civil dispute”. It includes actions for damages against the suppliers of goods (s 259) and services (s 267) for breaching guarantees of acceptable quality and fitness for purpose -- 10 of 19 -- 11 (s 54, ss 60 and 61) but also under s 236 arising from misleading or deceptive conduct (s 18). [16] Each case turns on its factual circumstances.13 [17] In relation to services s 267 of the ACL confers rights to a consumer where there has been a failure to comply with certain guarantees: (a) that the services will be rendered with due care and skill (s 60); (b) that the services and any product resulting from the services will be reasonably fit for a particular purpose made known to the supplier (expressly or by implication) (s 61); and (c) the services will be supplied within a reasonable time (if the time is not fixed by the contract and not to be determined by agreement) (s 62). [18] Under s 267(2) if the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time-the consumer may: (i) have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) terminate the contract for the supply of the services. [19] Under s 267(3) if the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) terminate the contract for the supply of the services; or (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services. [20] Under s 267(4) the consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with a guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. [21] A major failure in relation to services is defined in s 268 to be if: (a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or 13 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435. -- 11 of 19 -- 12 (b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (c) both of the following apply: (i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) both of the following apply: (i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or (e) the supply of the services creates an unsafe situation; or (f) the failure is one of two or more failures to comply with a guarantee such that the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole. [22] With respect to s 18 of the ACL, the term “misleading or deceptive conduct” is not defined but has been interpreted by the courts to mean conduct that leads, or is likely to lead, a person or persons into error. [23] In ACCC v Dukemaster Pty Ltd [2009] FCA 682 Justice Gordon set out (at para 10) the following key principles for determining a claim under s 52 of the Trade Practices Act 1974 (Cth), the equivalent provision of s 18 of the ACL: 1. A contravention of s 52(1) of the TPA is established by "conduct" which is misleading or deceptive or likely to mislead or deceive ... The "conduct", in the circumstances, must lead, or be capable of leading, a person into error ... and the error or misconception must result from "conduct" of the corporation and not from other circumstances for which the corporation is not responsible ... 2. Section 52(1) is concerned with the effect or likely effect of "conduct" upon the minds of that person or those persons in relation to whom the question of whether the "conduct" is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself .... Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests: ... Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context: .... 3. "Conduct" can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive: ... -- 12 of 19 -- 13 4. … Contravention of s 52(1) does not depend upon the corporation's intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false…. 5. Precisely the same principles control the operation of s 52(1) to statements involving the state of mind of the maker when the statement was made (e.g. promises, predictions and opinions).... 6. A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: ...An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: .... An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: ... 7. However, an opinion may convey that there is a basis for it, that it is honestly held and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert, a statement of opinion may contravene s 52 of the TPA: ... [24] Because loss is an essential element in any claim for damages, identifying the loss is a necessary step. Limits placed on recoverability of loss are: (a) Causation: The claimed loss must have been caused by the breach.14 Per Mason CJ in EH March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515: The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case". (b) Remoteness: The loss must not be too remote. Per Hadley v Baxendale (1854) 9 Exch 341 at 354 a loss will still be recoverable as damages for breach of contract if it: ... may fairly and reasonably be considered either [as] arising naturally, that is, according to the usual course of things from such breach of contract itself, or... may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. The High Court has since emphasised that it is not the specific loss that must be foreseeable, but only a loss of the kind sustained.15 [25] There is an obligation on the injured party to mitigate its loss;16 they cannot expect to recover damages if it lets the consequences of a breach of contract flow without taking any step to protect itself. 14 Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 at [446]. 15 European Bank Ltd v Evans of Robb Evans and Associates (2010) 240 CLR 432. 16 Cox v J & M Phelan trading as Carrara Carmart [2020] QCAT 190, [34]. -- 13 of 19 -- 14 [26] In mechanical cases, where there is more than one plausible or possible cause of the failure/breakdown, it is difficult to readily infer negligence in the sense of a failure to render the services with due care and skill merely from the fact of a breakdown, the breakdown itself and its proximity to when the mechanic accused of misconduct or negligence last had the vehicle. [27] Usually, independent mechanical reports or opinions are required to support a case that the services were defective, as opposed to a breakdown or other mechanical failure simply occurring in the ordinary course, and without negligence, due to the age of a vehicle, use or failure to maintain it. [28] Importantly, Ms Dennis bore the onus of proof in the proceeding at first instance, namely, she needed to satisfy the Tribunal that the more probable inference supports the case alleged. Although the rules of evidence are relaxed in the tribunal,17 it cannot resolve matters in the absence of evidence by mere conjecture.18 [29] The age of a vehicle, its mileage, and its proneness to mechanical fault can all operate to create likely alternative possible causes for the failures described by Ms Dennis, which in turn impacts her ability to prove causation and that the harm suffered was not too remote to the requisite standard of proof. [30] In a brief way, this is what the learned Adjudicator articulated in giving his reasons by referring to Ms Dennis’ failure to establish a breach of ss 60 or 61 of the ACL on the evidence she tendered. [31] Although the learned Adjudicator did omit to address the misrepresentation claims made by Ms Dennis to the extent they might have fallen outside a consideration of ss 60 and 61 of the ACL: (a) The application for minor civil dispute filed 18 November 2022 and its supporting materials do not identify the specific ACL guarantees relied upon by Ms Dennis in making her claim. (b) Ms Dennis does not appear to have tendered in the hearing, or filed prior to it, the “Compensation Claim Summary” document she had prepared for her mediation which sets out her claims. Despite this, her oral submissions addressed the issues set out in this document and do not reference s 18 of the ACL in any event. (c) Although Ms Dennis refers to “misinformation” and “wrong information” throughout her material and during the hearing, when the ACL guarantees were discussed in the hearing, she did not raise s 18 at all and instead focussed her submissions about misinformation amounting to a failure to provide services with due care and skill and within a reasonable time, and creating an unsafe situation. (d) The first mention of s 18 of the ACL appears in the application for leave to appeal or appeal. 17 QCAT Act, s 28(3)(b). 18 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. -- 14 of 19 -- 15 [32] On that basis, Ms Dennis has not established that the learned Adjudicator erred in failing to consider s 18 of the ACL. If am wrong about that and it was an error, there is no substantial injustice arising from the error because the claim still failed on a lack of sufficient evidence: this was extensively explored in the hearing and referenced in the reasons given for the decision. [33] There is no merit in this ground of appeal. Ground 2: Evidence and legal argument was disregarded [34] An Appeal Tribunal should generally not interfere with the findings of fact made in a first instance decision,19 except where those findings of fact are demonstrated to be wrong by incontrovertible facts, or if they are contrary to compelling inferences.20 [35] Put another way, there is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding.21 [36] According to the hearing transcript and the file itself, Ms Dennis’ evidence and the statements by CJD were thoroughly considered. Cross-examination was allowed. [37] As mentioned, Ms Dennis did not file written submissions and further argument until her reopening application that followed the hearing. The learned Adjudicator could not disregard what was not presented at the time of the hearing. [38] There is no merit in this ground of appeal. Ground 3: Reliance on incorrect, misleading and irrelevant information [39] Ms Ramsay also claims that the learned Adjudicator ignored or failed to read evidence filed with the Tribunal and overly relied upon evidence given by Mr Stephens in preference to Ms Dennis’ evidence. [40] This ground is not supported by the hearing transcript: (a) The learned Adjudicator had regard to the detail in the emails exchanged between the parties, in the three invoices issued by CJD and the commentary within invoices from Seven Slot Off Road and Motive Mechanical. (b) The learned Adjudicator noted, correctly, that there were no reports or sworn statements from the independent mechanics and that they did not attend to give evidence. (c) While the learned Adjudicator may not have been familiar with every document filed, his understanding of the matter and its issues was shown through his management of the hearing. [41] This ground does not support a grant of leave to appeal. Ground 4: Denial of procedural fairness 19 Dearman v Dearman (1908) 7 CLR 549, 561. 20 Fox v Percy (2003) 214 CLR 118, 128. 21 Australian Broadcasting Commission v Bond (1990) 170 CLR 321 [341]. -- 15 of 19 -- 16 [42] Procedural fairness results from a fair hearing. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case22 and whether a party was given a reasonable opportunity of presenting their case. Registry did not inform Ms Dennis that a reply had been filed. Ms Dennis was denied an opportunity to review the reply and to respond to it and to rely on other information in the hearing. [43] According to the hearing transcript, the hearing commenced at 2.05pm on 10 February 2023. After taking appearances, the learned Adjudicator checked with Ms Dennis to make sure she had received the reply filed by CJD Mechanical, and the following exchange occurred: ADJUDICATOR: Okay. Now, I've gone through the material. Can I check - have you received the response from the respondent? MS DENNIS: No, I haven't. ADJUDICATOR: Okay, I'll give you a copy. Now, I'll give you an opportunity to read that if you just wait - well, just go ahead and read it, I won't go further for now. MS DENNIS: It might take me a little time to read this… ADJUDICATOR: Why don't I stand the matter down for ten minutes. If the two of you go outside, you can read it and then I will get you back in once you've had an opportunity to read it? MS DENNIS: If that's all right? ADJUDICATOR: That's fine. Okay, we'll adjourn for ten minutes. I'll get the Hearing Support Officer to come out at twenty past to see how you're going. MS DENNIS: Okay, thank you. ADJUDICATOR: Thank you both. [44] The hearing stood down at 2.10pm and recommenced at 2.20pm. The reply itself was a three-and-a-half-page document. It ought not, in my view, have required more than ten minutes to peruse. Upon the hearing recommencing, Ms Dennis was prepared at that time to address what was in the response but was redirected by the learned Adjudicator to present her own case first, which she proceeded to do. [45] At no stage did Ms Dennis seek further time to read the reply document, nor did she seek an adjournment of the hearing to ponder it more thoroughly. To the contrary, Ms Dennis indicated her readiness to respond to the reply when the hearing recommenced at 2.20pm. [46] The responsibility of litigants in the Tribunal to attend to their own interests was emphasised by a former President of the Tribunal, Justice Wilson, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9]-[10]: The QCAT statutory regime itself places obligations upon parties to take care in dealing with tribunal matters ... The legislation and the demands upon public 22 Kioa v West (1985) 159 CLR 550, 612. -- 16 of 19 -- 17 resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it act in its own best interests, or accept the consequences. [47] The Appeal Tribunal cannot be satisfied in those circumstances that Ms Dennis was disadvantaged or denied a reasonable opportunity to respond to CJD’s case and it became of no consequence that the reply was not served. [48] There is no merit in this ground. Ms Dennis was not permitted by the learned Adjudicator to discuss the legal basis of her compensation order [49] Perusal of the transcript does not support this allegation. At the commencement of the hearing Ms Dennis was asked to confirm that she was querying the repairs done to her vehicle and that her claim was for a refund of the repair costs, and she confirmed that was correct.23 When the adjourned hearing resumed after being stood down, Ms Dennis was asked to present her evidence supporting a refund of the disputed invoices. [50] Ms Dennis submits that the Seven Slot Off Road invoice and the Motive Mechanical invoices established “that the information given to me about my vehicle was untrue”.24 Further on she refers to the “misinformation” give to her by CJD and that the Jeep would not have been off the road had she “been given the right information”.25 [51] Ms Dennis referred to the faulty wiring near the distributor, referred to by Motive Mechanical but gave additional oral evidence of opinions she says were expressed by Motive Mechanical that did not appear in their invoice. [52] When pressed by the learned Adjudicator to provide evidence linking the mechanical failure to action or inaction by CJD, by way of sworn statement or oral testimony, Ms Dennis noted that she did not wish to “involve anyone else in my dispute”.26 [53] Ms Dennis again alleges that her vehicle was off road for two years “because of the lies told to me by this business” and spent a considerable time on submissions with respect to the “wrong information” amounting to a failure to exercise due care and skill, taking reasonable steps to avoid all damage, and guaranteeing that services will be fit for purpose and provided within a reasonable time. [54] Ms Dennis was given ample opportunity to make additional submissions, which she did, and to make any concluding remarks before the learned Adjudicator gave his decision. [55] There is no merit in this ground of appeal. Ms Dennis was bombarded by the learned Adjudicator, felt unwell and was rendered powerless to do anything about it at the time. [56] Perusal of the hearing transcript does not support this allegation. 23 Transcript at page 1-2, lines 45-48. 24 Transcript at page 1-4, lines 30-34. 25 Transcript at page 1-4, lines 45-48. 26 Transcript at page 1-6, line 11. -- 17 of 19 -- 18 [57] Ms Dennis was given several opportunities to explain her case and to present her evidence. [58] She and Mr Stephens each put questions to the other. [59] Ms Dennis directed the learned Adjudicator to numbered pages in her filed documents and he did the same in return on an occasion when she appeared to have lost her place. [60] At no stage did Ms Dennis say that she would like a break, an adjournment or that she was overwhelmed, and she was invited to and did make final reply submissions after the respondent's final submissions. [61] There is no merit in this ground of appeal. Ground 5 - Inadequate reasons [62] There is an obligation on the Tribunal to give reasons for its final decision in a proceeding either orally, or in writing.27 Reasons must be adequate and address the issues that were put before the Tribunal for determination, per Muir JA in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [58]: The rationale for the requirement that Courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance" through not knowing or understanding why the party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice with procedural fairness; to provide "the foundation for the acceptability of the decision by the parties and the public" and further “judicial accountability". [63] Having said that, in Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 Justice Wilson, President noted at [8]: In the Tribunal's minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. The Appeal Tribunal should be slow to criticise oral reasons for decision without acknowledging the circumstances in which they are given, or the pressure of the learned Magistrate's caseload. [64] The learned Adjudicator's reasons, were given succinctly and extempore as follows:28 ADJUDICATOR: …I have read the submissions and the evidence of both parties, I have also heard oral evidence today from the parties. Very clearly that both parties firmly believe their situations and I have no doubt that there are elements of truthfulness in what they're saying. But it is irrelevant in terms of what I need to decide under the Australian Consumer Law, particularly with regards to section 60 and 61. That onus falls solely on the applicant to demonstrate that in all three invoices due care and skill and fitness for purpose haven't been exercised. Now, the applicant has evidence of emails, has the three invoices from the respondent and also invoices from Seven Slot Off Road and Motive Mechanical with regard to her Jeep Cherokee Sport. The difficulty is that there are no reports 27 QCAT Act, s 122. 28 Transcript at page 1-18, lines 14-40. -- 18 of 19 -- 19 and there is no sworn statements from these mechanics and they are not here today to give evidence. What I am being asked to believe is that there has been a full failure of care and skill and she's not established that. It is a pretty weighty position. What I have heard most of the evidence about is the distributor and the coil, and this is the work done two years after the work was done by the respondent and while that doesn't take prominence in my thinking, it is a concern to me that there has been two years and who knows what's happened in that period of time with regard to the vehicle? There has been no linking of the particular distributor issue. There has been some talk about taking it back for repairs but I do not need to consider that either. What I need to - what the applicant needs to establish, and I do not believe she has done, that there has been a full failure of due care and skill. There is no evidence of that that I can make an accurate decision. So it is the order of the tribunal that the application is dismissed. Thank you for attending today. [65] As stated, it is clear from the reasons that the learned Adjudicator had regard to the filed evidence and found it lacking. That finding was open to him on the evidence. [66] There is no merit in this ground of appeal. Should leave to appeal be granted? [67] The appeal process is not an opportunity for applicants to have their case automatically reheard.29 Respectfully, this appears to be what Ms Dennis is seeking. [68] The grounds of appeal do not have merit and, without an error by the Tribunal below, it cannot be said that a substantial injustice has occurred.30 Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal. [69] For those reasons, leave to appeal is refused and, therefore, the application for leave to appeal is dismissed. 29 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14]. 30 Greg Ritchie v Harcourts Broadbeach/Mermaid Waters [2024] QCATA 15. -- 19 of 19 --