Daygold Pty Ltd t/as BP Wamuran v Rock People Pty Ltd t/as Rock People [2023] QCATA 103

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Daygold Pty Ltd t/as BP Wamuran v Rock People Pty Ltd t/as Rock People [2023] QCATA 103 PARTIES: DAYGOLD PTY LTD t/as BP WAMURAN (applicant) v ROCK PEOPLE PTY LTD t/as ROCK PEOPLE (respondent) APPLICATION NO/S: APL268-22 ORIGINATING APPLICATION NO/S: MCD252-22 MATTER TYPE: Appeals DELIVERED ON: On the papers HEARING DATE: 27 June 2023 HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where motor vehicle engine damaged by contaminated diesel – where diesel supplier found liable – whether error of fact – whether Adjudicator erred in law by reversing onus of proof – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Berry v Treasure & Anor [2021] QCATA 61 Saxer v Hume [2022] QCATA 25 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented -- 1 of 7 -- 2 REASONS FOR DECISION Introduction [1] By an Application for leave to appeal or appeal filed on 7 September 2022 (the Appeal Application), the Applicant (Daygold) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 5 September 2022 (the Decision). [2] The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (Rock People) by an Application for minor civil dispute – consumer/trader; property damage caused by a motor vehicle, filed on 14 March 2022 (the MCD Application). [3] Rock People’s claim related to engine damage that had been sustained to a 2018 Toyota Landcruiser as a result of alleged contaminated diesel purchased from a petrol station operated by Daygold (trading as ‘BP Wamuran’). The amount of the claim was $8,453.07 (including the filing fee). [4] The hearing of the MCD Application proceeded on 5 September 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Daygold pay Rock People the sum of $2,997.37 within 7 days. This amount was comprised of the following components: $2,500.00 being the amount of an insurance excess paid by Rock People to have the car repaired under insurance, the fee for testing the diesel (carried out by a laboratory) in the amount of $264.00, and a refund of the cost of the diesel purchased of $106.37, together with the filing fee of $127.00.1 [5] In summary, the Adjudicator found that the diesel purchased was contaminated and was not fit for purpose and that the contaminated diesel caused the damage to the engine of the vehicle (and that the damages allowed were reasonably foreseeable as a result of the breach of warranty of fitness for purpose). The Grounds of Appeal [6] The Grounds of Appeal set out in the Appeal Application are stated as follows: 1. The Tribunal made an error of fact when determining the Applicant sold contaminated fuel to the Respondent: a. The Applicant provided direct evidence to the Tribunal, in the form of daily water paste test records conducted on the Applicant’s fuel storage tanks, that there was no contamination present in the fuel sold by the Applicant. b. The Respondent provided circumstantial evidence to the Tribunal, in the form of samples taken from their own vehicle hours after purchasing fuel, that the fuel they purchased from the Applicant was contaminated. c. In her reasons, Adjudicator Stroud did not address the direct evidence provided by the Applicant. The resulting error of fact is a substantial injustice in finding the Applicant had dols contaminated fuel when no contamination was presented the Applicant’s fuel. 1 Daygold does not challenge the quantum of the award. -- 2 of 7 -- 3 [7] By its written submissions filed on 21 November 2022, Daygold contends that the Adjudicator: (a) erred in fact in making the following findings: (i) that the problem with the fuel filters occurred very shortly after filling up with the diesel (first alleged factual finding); (ii) that analysis showed that the diesel was contaminated (second alleged factual finding); (b) erred in law by reversing the onus of proof in relation to the finding that Daygold sold contaminated diesel to Rock People (the alleged error of law). The Orders sought [8] The Orders sought in the Appeal Application are stated as follows: 1. The Tribunal’s decision on 5 September 2022 be set aside. 2. The Respondent’s original Application be dismissed. 3. The Respondent pay to the Applicant the filing fee of this Appeal in the amount of $367.00. Leave to appeal is required [9] An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.2 [10] As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:3 … As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. (citation omitted) 2 Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). For completeness, given the Grounds of Appeal, leave to appeal would have been required in any event pursuant to s 142(3)(b) of the QCAT Act. 3 See Saxer v Hume [2022] QCATA 25, [2]. -- 3 of 7 -- 4 [11] Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:4 There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis: The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. (citation omitted) [12] In deciding whether leave to appeal should be granted, I will deal with each of the alleged errors in turn. First alleged factual error [13] The Adjudicator found that the problem with the fuel filters occurred ‘very shortly’ after the filling up with the diesel.5 [14] Daygold contends that the drive time from the service station to ‘Landcruiser Park’ where the problems with the engine emerged was a 1½ hour drive depending on traffic conditions. Daygold also referred to email correspondence from Mr Beutler of Rock People to Torque Toyota in which reference was made to 3-4 hours of further driving. [15] In my view, the phrase ‘very shortly’ is open to interpretation and should be considered in the context of the factual findings made by the Adjudicator. [16] In the Adjudicator’s reasons, the Adjudicator accepted the evidence of Mr Beutler (for Rock People) that approximately 1 to 1½ hours after purchasing the diesel, the vehicle started experiencing fuel filter errors, which included the vehicle sliding down a steep embankment due to an engine failure.6 This finding was consistent with Mr Beutler’s oral evidence given at the hearing.7 It was this period of time that the Adjudicator was plainly referencing in the context of the problem occurring ‘very shortly’ after the filling up with the diesel. [17] In my view, Daygold has not established a reasonable argument that the Decision was attended by error in relation to the finding as to the timing of the occurrence of the fuel filter problem. For completeness, I observe that, in any event, Daygold has not demonstrated that there would be any proper basis for setting aside the Decision even if it were accepted that Mr Beutler had driven for, say, approximately 3 or so hours before the problem emerged. 4 [2021] QCATA 61, [14]. 5 Transcript T1-17 lines 35-36. 6 T1-16 lines 21-24. 7 T1-4 lines 28-29. -- 4 of 7 -- 5 Second alleged factual error [18] The Adjudicator found that ‘analysis shows that the diesel was contaminated’. That finding was made as part of a series of findings as follows:8 I am satisfied, based on the evidence before me, that on the balance of probabilities that the petrol purchased or the diesel purchased by the respondent from the - sorry, from the applicant - by the applicant from the respondent was contaminated and I make this finding based on the very - on the immediate steps taken by the respondent, the fact that the last purchase of diesel was from the same petrol station, that the problem with the fuel filters occurred very shortly after filling up with the diesel, that the analysis shows that the diesel was contaminated, that the damage to the vehicle was a result of contaminated fuel and that there’s - and I find that based on the evidence provided, it supports that that purchased was purchased from the applicant - from the respondent, sorry. [19] Daygold submits that the Adjudicator erred by failing to have regard to the ‘water finding paste test results’ and the daily undertaking of those tests by Daygold. [20] The evidence of Mr McPhee on behalf of Daygold at the hearing in relation to the testing was as follows:9 … we do daily water paste testing of all our underground fuel tanks. That’s a standard product test. And if there’s any results from those water paste tests that aren’t satisfactory, myself or our operations manager are notified immediately, and we stop sale on that product until we can resolve why the test doesn’t come back clear. Those [indistinct] in that design - - - [ADJUDICATOR]: Now, take me through those water tests you’ve got, as an extra deed. RESPONDENT: So the water paste tests - they test with a dipstick that sits in the tank. We have a water paste that we put on the bottom of it. It gets dropped into the tank, because water would sit on the bottom. And it changes colour, and it starts as, like, a maroon-brown colour, and if you pull it back out and there’s water present in the tank, it’s a bright yellow. And if that paste comes back as a bright yellow, the staff member who does the water paste test would immediately tell their site manager, who would then tell me [indistinct] [ADJUDICATOR]: But take me through the testing. How do I know what these tests mean? RESPONDENT: Are you looking at my [indistinct] [ADJUDICATOR]: Yes [indistinct] D [sic]. RESPONDENT: So it records - basically, that’s our fuel control spreadsheet. So it records minor variances, which are just a result of manual diffs on site. People aren’t perfect; they don’t always get the right numbers when they’re trying to read fuel lines on dipsticks. But relevant to these proceedings is the far column, where we have the water paste test results. And they tick in there that they’ve done it, and the results were okay each day that it’s completed. If there are days when it’s too wet and we instruct our staff, “Okay, you know, due to the fact that it’s raining all day, we don’t want you to go out to the tanks,” then they would just put a dash and say, “We were unable to do the tests today.” But 8 T1-17 lines 30-39. 9 T1-7 line 11 to T1-8 line 14. -- 5 of 7 -- 6 then, you can see for that month they were able to do a water paste test every day, and the results were all okay. [ADJUDICATOR]: But how do I know they’re okay? RESPONDENT: Well, it’s written there that the tests were okay. [ADJUDICATOR]: Well, I know the word okay is there, but explain how you determine from testing that it’s okay? RESPONDENT: Because the water placed on the bottom of the dipstick is still that 5 maroon-brown colour that it starts out as. [ADJUDICATOR]: Right. So it’s just basically looking at the dipstick, is it? RESPONDENT: So this paste - this - sorry - this paste that gets put on the bottom of the dipstick, the dipstick goes back into the tank, they leave it there for a couple of seconds, they pull it back out. If there’s water present, that paste changes colour to a bright yellow. If it doesn’t change colour, it’s all okay, they wipe it off, they put the dipstick back into the tank. [21] I accept Rock People’s submissions that Daygold did not present any evidence of the effectiveness of the water paste tests or their ability to test for anything other than water. In circumstances where the Adjudicator was not satisfied that the contamination to the diesel occurred after the filling up of the vehicle at the service station, I consider that the Adjudicator was plainly justified in accepting the formal laboratory test results of ALS Laboratories adduced by Rock People, rather than the ‘water paste’ testing undertaken by Daygold. [22] Daygold also suggests that the Adjudicator made the findings without regard to the water paste test results having regard to the statement in the reasons that: ‘It seems, really, that the evidence relied upon by the respondent is the fact that there was such a large amount of fuel sold and there were no other complaints that were made. What, perhaps, would have supported the respondent slightly more is if, on the morning that the respondent was notified that there was an allegation of contaminated fuel, that a test be done on the fuel at that time.’10 [23] Earlier in the reasons, the Adjudicator referred to Mr McPhee’s evidence in relation to the water paste tests being conducted.11 [24] In my view, when the observations of the Adjudicator referred to in paragraph 22 above are read in context, the Adjudicator’s reference to ‘a test’ not being done on the ‘fuel’ at that time was a reference to an absence of laboratory testing of the diesel contained in the underground tank at Daygold’s premises, in circumstances where Daygold had been informed of the problem encountered by Mr Beutler. [25] In my view, Daygold has not established a reasonable argument that the Decision was attended by factual error in relation to the finding that ‘analysis shows that the diesel was contaminated’. That express finding was plainly supported by the results of testing by ALS Laboratories. 10 The following sentence of the reasons was in these terms: ‘… the applicant says that he did communicate with them but received no response’: T1-17 lines 27-28. 11 T1-16 lines 42-45. -- 6 of 7 -- 7 Alleged legal error [26] Daygold submits that Rock People bore the onus of proving that Daygold had sold contaminated diesel and that the Adjudicator appeared to have reversed the onus of proof by making the following statement:12 The respondent asserts that other ways in which the fuel could have been contaminated is potentially from the use of the applicant of the vehicle in the - while four-wheel driving at the Landcruiser park. ... The problem with that argument is there’s really nothing to back it up. The evidence provided by the respondent is very limited and there’s no evidence from any professional person that would support other ways in which the fuel could have been contaminated. [27] In my view, the Adjudicator plainly understood that Rock People bore the onus of proof. The Adjudicator said:13 The onus is on the applicant to establish to the Tribunal’s satisfaction that, on the balance of probabilities, the damage caused to the vehicle was a result of dirty fuel purchased from the respondent. [28] I also consider it plain from the reasons set out at paragraph 18 above that the Adjudicator was satisfied that Rock People had discharged its onus of proof. [29] When the observations of the Adjudicator set out at paragraph 26 above are read in context, I consider that the Adjudicator simply recorded a contention by Mr McPhee (on behalf of Daygold) as to how the diesel came to be contaminated (that is, whilst being driven at Landcruiser Park),14 and then noted that there was insufficient evidence to support such a finding (in circumstances where the Adjudicator expressly found that Rock People had discharged its onus of proof for the reasons stated). [30] In my view, on a proper reading of the reasons, the Adjudicator did not proceed in a manner that amounted to a ‘reversal’ of the onus of proof. I consider that Daygold has not established a reasonable argument that the Decision was attended by the alleged error of law. Conclusion [31] For the above reasons, I consider that Daygold has not established that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or that Daygold raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. [32] Leave to appeal is refused. 12 T1-17 lines 14-22. 13 T1-17 lines 10-12. 14 See Mr McPhee's submissions at T1-9 lines 14-26. -- 7 of 7 --