Beta Memorials Pty Ltd v Mirkovic [2023] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beta Memorials Pty Ltd v Mirkovic [2023] QCATA 68 PARTIES: BETA MEMORIALS PTY LTD (applicant) v DRAGAN MIRCOVIC (respondent) APPLICATION NO/S: APL154-21 ORIGINATING APPLICATION NO/S: MCDO25 of 2019 MATTER TYPE: Appeals DELIVERED ON: 14 June 2023 HEARING DATE: 5 June 2023 HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: 1. The application for leave to appeal is granted. 2. The decision and orders of the Tribunal delivered on 21 April 2021 are set aside. 3. These proceedings are remitted to another adjudicator for rehearing and determination at a date to be fixed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – consumer dispute – where construction of grave memorial subject of contract – where major defect in headstone involved – whether failure caused by supplier’s default or act of consumer – where evidence of consumer’s interference adduced - where evidence not considered – whether omission to consider evidence legal error - where error of law discerned - where leave to appeal granted and appeal allowed – where remitted to primary tribunal for rehearing Competition and Consumer Act 2010 (Cth) Schedule 2 Australian Consumer Law (‘ACL’) s 54, s 268 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 3, s 4, s 57, s 95, s 142, s 143, s 216 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 -- 1 of 6 -- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Hoskins v Repatriation Commission (1991) 23 FCR 443 JM v QFG and KG [2000] 1 Qd R 373 Kermanioun v Comcare (1998) ALD 503; [1998] FCA 1529 L J Hooker v Stafford [2020] QCATA 94 McGarry v Coates [2013] QCATA 32 Myers v Medical Practitioners Board (2007) 18 VR 48 Pappas v Meiklejohn’s Accountants [2017] QCATA 60 Sali v SPC Limited (1993) 67 ALJR 841 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Young v Cesta-Incani (2007) 49 MVR 31; [2007] NSWCA 229 APPEARANCES & REPRESENTATION: Appellant: P Mason instructed by Chan Lawyers Respondent: S-J Tan instructed by Gold Coast Community Legal Centre REASONS FOR DECISION Introduction [1] In March 2018 the respondent to this application (‘Mirkovic’) engaged the applicant (‘Beta’) to construct a headstone on his father’s grave in the Southport Lawn cemetery at Nerang. [2] The construction took place on 1 and 2 November 2018. [3] Three days later, on 8 November 2018 the local authority condemned the structure as unstable and a danger to members of the public.1 [4] It is now common ground, as the Adjudicator found2, that Beta’s construction was unfit for purpose, and unacceptable within the meaning of the Australian Consumer Law.3 One issue remains [5] The remaining question, then, concerns the efficient cause of the defect: poor workmanship by Beta, or some act of Mirkovic? If the latter, Mirkovic’s claim must fail.4 1 Gold Coast City Council to Beta, 5 November 2018. 2 Decision of tribunal 21 April 2021 (‘D’) paragraphs [60]-[61]. 3 Competition and Consumer Act 2010 (Cth) Schedule 2 Australian Consumer Law (‘ACL’) s 54. 4 ACL s 54(6), D paragraph [52]; ‘Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality …’. -- 2 of 6 -- [6] The adjudicator attributed the major failure5 to Beta and awarded Mirkovic $4,000, being the deposit paid by him to Beta. That decision is disputed by Beta which alleges that Mirkovic caused the failure by pushing or shaking the headstone before the adhesive securing it to its base had set. Is this application out of time? [7] That issue is examined below. First it is necessary to deal with Mirkovic’s late claim6 that Beta’s application for leave to appeal was filed out of time. That submission is essentially a challenge to jurisdiction, and so, albeit late, it may be considered at any stage before a substantive decision is made.7 [8] There is no substance in this point of procedure. The application filed by Beta on 2 June 2021, states in reply to the question: ‘When did you receive the decision’: ‘7 May 2021’. Mirkovic fairly concedes8 that if this be correct, the application for leave was, after all, filed within the time prescribed.9 [9] The application is not a sworn document, but sanctions apply to any false statement therein.10 Further, the tribunal may treat an unsworn statement as evidence.11 [10] The submission suggests that the interval between delivery of judgment (21 April 2021) and the leave application (2 June 2021) is suspiciously long, but offers no evidence to support an adverse inference on the basis of that inference. But people do not always receive or deal with their mail forthwith; I am not prepared to debar the application upon mere suspicion, supposition or innuendo. [11] The application to reject the leave application as out of time is dismissed. [12] I now return to the substantive dispute. No evidence of Mirkovic’s agency? [13] On the final page of a 12-page decision the Adjudicator summarily dismissed Beta’s allegation that Mirkovic himself caused the failure of the headstone: There is, therefore, sufficient evidence in my view to find that the headstone had been moved between 1 and 2 November, causing … the mortar to dry in a way that resulted in [it] becoming unstable … However, there is no evidence to show that Mr Mirkovic moved it.12 [14] With respect, there is emphatic and explicit evidence of two purported eye-witnesses that Mirkovic did move the headstone before it could become firmly attached. Of course this is not to say that such evidence must be accepted, but only that it exists and deserves to be considered. 5 As to the statutory meaning of ‘serious failure’ see ACL s 268. 6 Raised at the hearing of the present application on 5 June 2023. 7 See L J Hooker v Stafford [2020] QCATA 94 and authorities there cited, particularly Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 at 257; see also McGarry v Coates [2013] QCATA 32 at [6]. 8 Submissions for Mirkovic handed up 5 June 2023 paragraph 6. 9 QCAT Act s 143(3), s 143(5). 10 QCAT Act s 216. 11 QCAT Act s 57(1), s 57(3), s 95(4). The tribunal ‘may’ – not ‘must’ take evidence on oath. 12 D page 12 paragraph [65]. -- 3 of 6 -- [15] At approximately 9.30-10.00 am on 2 November Mirkovic, Paul Taylor and Brendan Masters were at the site. Taylor is the manager of Beta; at the material time Masters was an employee of Beta and Taylor’s apprentice. [16] The hearing was divided between two days, 6 July and 3 August 2020. Taylor’s evidence [17] On 6 July 2020 Taylor’s evidence included the following: When [Mirkovic] came in the morning his demeanour was totally off the Richter scale … He shook the headstone … I shouted at him and I said: ’Stop it!’ … [T]he whole headstone was wobbly.13 He said, “I just touched it and it moved”. We’re talking 400 kilos of granite that he just touched it, and it shook violently. … 400 kilos of granite does not shake by just touching it gently. He shook it violently.14 [18] However, Mirkovich has consistently denied that he applied force to the stone. His only concession is that he `touched’ it.15 [19] Mirkovic’s motive for moving the newly-set stone, if indeed he did so, is obscure. There was some lightweight hearsay material suggesting that he wanted to avoid the Beta contract to take up a cheaper alternative, but the Adjudicator – with respect quite properly – rejected it.16 There is no need to speculate; if the direct evidence of Beta’s witnesses were accepted there is no compelling reason to prove motive [20] At the resumed hearing on 3 August 2020 Taylor deposed inter alia: The next morning [2 November] Mr Mirkovic came straight to the site… walked straight up to the site in a very brisk manner, grabbed the column and shook it violently.17 [Concerning clients generally] They go and check the headstone and we tell them explicitly: ‘Don’t touch the headstone, please, for at least a week’.18 Q. When you returned next day, was it more or less than 24 hours? A (Taylor): A lot less than 24 hours.19 … It was a violent shake.20 [T]his gentleman [Mirkovich] has shaken the headstone in our presence.21 The movement was the very next day [2 November] when he rocked the headstone in my presence.22 Evidence of Masters [21] The evidence of the employee Masters included the following: 13 T page 1-23 line 46, T page 1-24 lines 1-5. 14 T page 1-24 lines 34-36. 15 T page 2-36 line 19; page 65 line 22. 16 D paragraph [40]. 17 T page 2-16 lines 4-7. 18 T page 2-16 lines 20-21. 19 T page 2 lines 16-19. 20 T page 2-23 lines 15-16. 21 T page 25 line 22. 22 T page 2-39 lines 31-32. -- 4 of 6 -- I just remember we went there to silicon or detail a few lines. I remember this person coming over, Dragan, [Mirkovic] and [his] shaking the actual headstone. He was rocking back and forth, which, when we left [1 November] it was solid.23 Q: And you very clearly saw him shake the headstone? A: Yes.24 [22] ‘Mr Masters’ account of the day is not helpful at all’25. This dismissive comment seems unduly critical. [23] At all events there is quite a deal of evidence, be it accepted or rejected, that ‘Mirkovic moved it’.26 Yet, with respect, the brief section of the decision entitled ‘Consideration’ of Decisions and Evidence’27 virtually ignores that evidence. No considered reasons for the omission appear. [24] A failure to give sufficient or any reasons for a decision on a central issue invalidates a judicial decision.28 ‘[If a] submission worthy of serious consideration … is not dealt with, one ought to infer that that it has been overlooked, giving rise to an error of law’.29 Regretfully, I am bound to draw that inference here. Resolution [25] What, then, should be done? An application for leave to appeal is not an occasion to conduct a trial of issues of fact and credit. Unlike a primary tribunal, decision-makers in an appeal tribunal does not have the benefit of seeing and hearing the parties and their witnesses. Decisions on fact and credit cannot be determined by reading a transcript. Within the bounds of law and rationality such decisions are the prerogative of the primary judge.30 Yet this dispute about a relatively modest sum has already consumed a disproportionate amount of this busy tribunal’s time and public resources in two trials and two appeals.31 Meanwhile other litigants, often with questions of greater importance, wait in the queue.32 There is a major public interest in finality of litigation, which QCAT is specifically designed to serve.33 It is with great reluctance that I raise the possibility of a third trial, but there is a legal obligation to do so. That unfortunate event can only be averted if the parties sheathe their swords and negotiate some reasonable compromise – a resolution devoutly to be wished. [26] Leave to appeal will be granted, the subject decision will be set aside and the matter remitted to another adjudicator. 23 T page 2-58 lines 14-16 (Masters). 24 T page 2-72 line 26. 25 T page 76 lines 11-12. 26 D paragraph [65]. 27 D pages 11-12. 28 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Kermanioun v Comcare (1998) ALD 503; [1998] FCA 1529: Young v Cesta-Incani (2007) 49 MVR 31; [2007] NSWCA 229. 29 Hoskins v Repatriation Commission (1991) 23 FCR 443 at 448 per Pincus J. 30 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 ; JM v QFG and KG [2000] 1 Qd R 373 at 391; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53]. 31 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9] and [10]; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9]-[10]; Pappas v Meiklejohn’s Accountants [2017] QCATA 60 at [10] (Thomas QC). 32 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844. 33 QCAT Act ss 3(b), 4(b), (c), 142(3)(b). -- 5 of 6 -- [27] There is an application for the admission of fresh evidence.34 In the circumstances it is unnecessary to express a concluded decision on that point. ORDERS 1. The application for leave to appeal is granted. 2. The decision and orders of the Tribunal delivered on 21 April 2021 are set aside. 3. These proceedings are remitted to another adjudicator for rehearing and determination at a date to be fixed. 34 Respondent’s submissions on leave to appeal page 11. -- 6 of 6 --