Beta Memorials Pty Ltd v Mirkovic [2020] QCATA 82

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beta Memorials Pty Ltd v Mirkovic [2020] QCATA 82 PARTIES: BETA MEMORIALS PTY LTD (appellant) v DRAGAN MIRKOVIC (respondent) APPLICATION NO/S: APL158-19 ORIGINATING APPLICATION NO/S: MCDO 25/19 (Southport) MATTER TYPE: Appeals DELIVERED ON: 2 June 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: 1. The applications made by Beta Memorials Pty Ltd and by Dragan Mirkovic to put ‘fresh’ evidence before the Appeal Tribunal are refused. 2. The application made by Beta Memorials Pty Ltd for an oral hearing of this appeal in the Appeal Tribunal is refused. 3. Leave to appeal is granted. The appeal is allowed. 4. The decision made in application MCDO 25/19 (Southport) on 23 April 2019 is set aside and the application is returned to the tribunal for reconsideration in the minor civil dispute list by any tribunal properly constituted. 5. The following directions apply to the remitted hearing of MCDO 25/19 (Southport): (a) The Appeal Tribunal shall provide the transcript of the hearing on 23 April 2019 to the Southport Registry to be attached to the file of MCDO 25/19 (Southport) and the transcript shall be admissible in evidence at the hearing. -- 1 of 8 -- 2 (b) Beta Memorials Pty Ltd shall, by 30 June 2020 provide the following documents to the Southport Registry to be attached to the file of MCDO 25/19 (Southport): (i) statutory declarations of Brendan Masters and of Dean Bickerdilze both made on 28 June 2019; (ii) report of Graham Taylor dated 11 November 2019. (c) Dragan Mirkovic shall by 30 June 2020, provide the following documents to the Southport Registry to be attached to the file of MCDO 25/19 (Southport): (i) report of Luke Zwolsman of Artistone dated 28 August 2019; (ii) affidavit of Dragan Mirkovic made on 20 January 2019 with its exhibits. (d) All the documents as listed above (as filed by Beta Memorials Pty Ltd and Dragan Mirkovic) shall be admissible in evidence at the hearing. (e) Any further material on which either party wishes to rely must be sent to the other party and to the tribunal to be attached to the file of MCDO 25/19 (Southport) by 30 June 2020. (f) Dragan Mirkovic, Paul Taylor and Brendan Masters shall attend for cross examination at the hearing. (g) No other person shall attend the hearing as a witness. (h) Practice Direction No 4 of 2009 (expert evidence) shall not apply. (i) A Serbian interpreter shall be booked for the hearing. (j) Unless the tribunal directs otherwise, the application will be heard on a date to be fixed. 6. All the above directions are subject to the discretion of, and may be amended or waived by, the tribunal either before or at the remitted hearing. -- 2 of 8 -- 3 CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where resolution of a claim before the tribunal required certain findings of fact – where the panel of two Justices of the Peace did not make such findings nor explain why they did not do so – whether there was an error of law REPRESENTATION: Appellant: Self-represented but assisted by Chan Lawyers Respondent: Self-represented but assisted by Gold Coast Community Legal Centre APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This is an appeal from a decision of a panel of two Justices of the Peace hearing a claim in a minor civil dispute. After hearing an application by Dragan Mirkovic, the panel ordered Beta Memorials Pty Ltd to repay Mr Mirkovic a deposit of $4,000 which he had paid to them to construct and install a memorial for a grave. [2] The appeal turns on whether the panel made findings of fact necessary to resolve the issues between the parties or explained why they did not make those findings. [3] The claim brought by Mr Mirkovic relied on a ‘Defect Notice’ issued by the Gold Coast City Council in which the Council declared the memorial as dangerous after it had been constructed and installed by Beta Memorials. The defect notice identified several defects with the memorial but the main one was that the headstone was ‘extremely unstable’ and unable to withstand wind loads or nearby vibration. Following the defect notice the headstone was removed,1 and the Council commissioned a report from a structural engineer. The engineer recommended that the headstone should be designed and constructed in a certain way and reinstalled on the memorial in a way to provide sufficient structural stability. [4] The application was made on the tribunal’s Form 1, which is used for consumer claims against a trader. No formal response can be filed against such a claim.2 Despite this, Beta Memorials filed some material in response, and provided this to Mr Mirkovic. In particular they had obtained a structural engineer’s report of their own. This concluded that there was nothing wrong with the design of the memorial, but that the problem arose from a ‘dowel and mortar installation failure’. The engineer said that there were three possible causes of that failure – loosening by the owner prior to the mortar setting, poor installation, or incorrect dowels. Of these three possibilities, the 1 Although Mr Mirkovic said in the application that the Council had removed the headstone, at the hearing Beta Memorials said that they removed it. 2 Rule 43 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). -- 3 of 8 -- 4 engineers said that the first was the most likely one because they had been told by Beta Memorials that: .. soon after the headstone, pillars and pediment had been erected .. the owner attended site and proceeded to test the stability of the headstone by applying force to the headstone at which time he was instructed to immediately stop as the mortar had not had time to adequately set. [5] In Beta Memorials’ response materials there was also an email which said that the inscription on the headstone was in Cyrillic and that Mr Mirkovic had realised he had made a mistake in approving the proof, so the first headstone had to be remade. Then after installation, Mr Mirkovic realised that he had made a second mistake in approving the proof. [6] From these documents, prior to the hearing, Beta Memorials’ defence to the claim was clear. [7] The Appeal Tribunal has obtained a transcript of the hearing. Mr Mirkovic attended the hearing and Mr Taylor attended for Beta Memorials. They both gave evidence to the panel, albeit not under oath, and referred to their paperwork, and made submissions. Their respective cases corresponded with the cases they had made on paper before the hearing. [8] Inevitably the question whether Mr Mirkovic had loosened the headstone before it had time to set was raised by Mr Taylor as a central issue. He described the incident referred to in the structural engineer’s report. He said that he and one of his ‘lads’ attended the site with Mr Mirkovic to detail the memorial when Mr Mirkovic said ‘I don’t want this memorial’ and shook the headstone, and Mr Taylor told him to stop immediately.3 Mr Mirkovic accepted that there was a meeting at the memorial but vehemently denied that he had shaken the headstone. He said he had merely touched it by accident.4 [9] Mr Taylor explained that the reason why Mr Mirkovic damaged the memorial was that he had an ‘agenda’. He was unhappy with the memorial because there were spelling mistakes in the inscription on the headstone and because the inscription was on the wrong side of the headstone. But Mr Taylor said that this was not the fault of Beta Memorials because Mr Mirkovic had approved the proof and signed off on the placement of the inscription.5 [10] A central issue to be resolved by the panel was therefore whether or not Mr Mirkovic had loosened the headstone before it had set. [11] When dealing with this issue in their reasons the panel said:6 3 Transcript 1-12 line 25. Also referred to: transcript 1-16, 1-18, 1-25, 1-29, and 1-30. 4 Transcript 1-19 line 30, 1-20 line 5, 1-21 line 44, and 1-22 line 29. 5 Transcript 1-10 line 27 and 1-25 line 40. 6 Transcript 1-40 line 5. -- 4 of 8 -- 5 The evidence of Mr Taylor is that, in fact, Mr Mirkovic shook the memorial and thereby loosened it within 24 hours of it being installed. Mr Mirkovic says that, in fact, he only touched the memorial. [12] The panel did not make a finding about this, but went on to find:7 The evidence today shows that the memorial was not safe. Both (Beta Memorials’ engineer) and the Council defect notice suggest that the memorial was, in fact, unstable. That being the case, the tribunal looks at the legislation that would apply for it. [13] The panel went on to find that since Mr Mirkovic had rejected the memorial he was entitled to a refund of the deposit. The appeal [14] The grounds of appeal appear in the application for leave to appeal or appeal and in subsequent submissions.8 The main point made in these documents is that the panel misapplied the relevant sections of the Australian Consumer Law because the defect in the headstone was caused by Mr Mirkovic moving the headstone before the mortar had set. It is said that the panel should have made that finding. Considerations in the appeal [15] Bearing in mind that Mr Mirkovic was claiming the return of his deposit of $4,000 and the total contract sum was $18,000,9 in order to succeed in his claim he needed to show that he was entitled to reject the memorial. [16] To be entitled to reject the memorial, Mr Mirkovic needed to show that there had been a ‘major failure’ by Beta Memorials to comply with the guarantees in the Australian Consumer Law (Queensland). [17] The Australian Consumer Law (Queensland) is in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and is applied in Queensland by section 16 of the Fair Trading Act 1989 (Qld). [18] A major failure is defined in the Australian Consumer Law in sections 260 (for goods) and 268 (for services). Of relevance to the claim brought by Mr Mirkovic, a failure will be a major failure if it results in an unsafe situation or if the product is not fit for the purpose and cannot readily be made fit.10 [19] The failure must be a failure to comply with one of the guarantees. The guarantees of relevance to the claim are that the materials supplied for the memorial were of 7 Transcript 1-40 line 30. 8 Submissions filed on 3 October 2019. 9 There was a signed contract with terms and conditions on its reverse provided to the tribunal prior to the hearing. 10 This is a summary of some of the provisions only. -- 5 of 8 -- 6 acceptable quality and fit for the purpose, and that the work of installation was done with due care and skill and was fit for the purpose.11 [20] The panel recognised that the main complaint about the memorial was that it was unsafe because of the loose headstone.12 Therefore whether or not Mr Mirkovic had loosened the headstone as stated by Beta Memorials was a relevant issue. That issue was apparent from the paperwork prior to the hearing and took centre stage in the hearing itself. [21] But the panel did not say in their reasons whether or not it had happened. [22] Because of the inquisitorial process used to determine minor civil disputes, sometimes a finding of fact can be found in the discussions between the tribunal and the parties rather than in the reasons themselves. Here this did not happen, however. Since there were two members of the panel probably there was no opportunity for such an indication anyway, because the panel would need to consult before giving such an indication. [23] Sometimes in an appeal it is possible to infer that there must have been a particular finding of fact because that is the only explanation how the tribunal could have moved on to a subsequent step in the decision making process. So this possibility needs to be examined. [24] It does not appear that the panel was of the view that the other less important defects in the memorial permitted Mr Mirkovic to reject it, because they appeared to be satisfied that the case was proved because the memorial was ‘not safe’ and that it was ‘unstable’.13 In any case, any less important defects may not have been a major failure which would have entitled Mr Mirkovic to reject the memorial. [25] There seem to be three remaining possibilities: (a) the panel did not accept Mr Taylor’s evidence about Mr Mirkovic loosening the headstone; (b) the panel thought that due to defective workmanship the headstone was not going to fix in place anyway, irrespective of any intervention by Mr Mirkovic; (c) the panel overlooked the importance of any intervention by Mr Mirkovic. [26] Since any of these may have applied, no inference can be reached about which did apply. There seems to have been an error of law therefore in failing to make necessary findings of fact to resolve the dispute. [27] In the circumstances I must grant leave to appeal and allow the appeal on that basis. I need to consider how the appeal can be resolved. 11 These guarantees are in sections 54, 55, 60 and 61. 12 Transcript 1-26 line 39. 13 Transcript 1-40 line 30. -- 6 of 8 -- 7 Other applications before the Appeal Tribunal [28] There are other applications before me to decide in this appeal. One application is for an oral hearing before the Appeal Tribunal as requested by Beta Memorials. Mr Mirkovic prefers the appeal to be heard on the papers, but says that if there is to be an oral hearing he would like to be represented due to language difficulties. [29] Since I have concluded this appeal on a question of law it is covered by section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (deciding appeal on question of law only). Although that section would permit me to set aside the decision and substitute my own decision, that can only happen if the factual findings of the tribunal were sufficient, when applying the correct legal approach, to resolve the dispute. When hearing an appeal under section 146, the Appeal Tribunal is not entitled to rehear the claim and reach its own finding of facts. [30] It might be said that this appeal is really an appeal on a question of fact. Although one of the grounds of appeal is that the panel should have found that Mr Mirkovic did loosen the headstone, since the panel did not make a finding about this it is impossible for the Appeal Tribunal to say that any finding was wrong. Instead, failure to make any finding about it was an error of law. [31] Inevitably therefore it will be necessary to remit this application back to the tribunal for it to be reconsidered in a rehearing. The application for an oral hearing in the Appeal Tribunal is therefore refused. [32] Both parties have applied to put ‘fresh’ evidence before the Appeal Tribunal but this is inappropriate in the way in which this appeal has been dealt with because the Appeal Tribunal is unable to rehear the dispute. Both applications to put fresh evidence before the Appeal Tribunal are refused for that reason. [33] I do make some directions however to help resolution of this matter in the tribunal. Some directions require the parties to file their further documentation in the Southport Registry. This is necessary to ensure that documents on which they wish to rely and which they have submitted to the Appeal Tribunal do go before the tribunal for the remitted hearing (this is because the tribunal file and the Appeal Tribunal file are held separately). [34] The directions recognise that there are now two ‘expert’ witnesses for each side. It is probably disproportionate to the claim for any expert to attend the remitted hearing. Certainly if any expert needed payment to attend the remitted hearing this would be disproportionate. If an expert were to attend for no fee that could be unfair to the other party. Hence the directions provide for all the experts’ reports to be admissible but none of the experts are allowed to attend the hearing. Decision makers in the minor civil dispute jurisdiction are well used to dealing with expert evidence in this way. Similarly all other written evidence will be admissible without the attendance of the relevant witnesses. The exception will be the witnesses to the alleged loosening event, who must attend for cross examination. This is because the evidence about this is very relevant to the outcome. [35] In his appeal submissions, Mr Mirkovic has asked for an order that Beta Memorials remove all remaining parts of the memorial from the grave. He refers here to the base of the memorial without the headstone. He says that it is unsafe as shown by the -- 7 of 8 -- 8 comments of his expert.14 It is not at all clear that the tribunal has jurisdiction to make such an order. It is not within section 13 of the QCAT Act (which lists the orders which can be made), and it is unclear whether it would be within section 114 of the QCAT Act (conditions and ancillary orders and directions). Hence it is inappropriate for the Appeal Tribunal to direct that his Form 1 application is amended to include an application for such an order. Instead, if Mr Mirkovic wishes to pursue this, he will need formally to apply to amend his Form 1 application, and that will be considered separately on submissions from the parties. Any such application should be made well before the remitted hearing. Conclusion in the appeal [36] The panel omitted to make the necessary findings of fact to determine the dispute, and did not explain why they did not make those findings. Leave to appeal is granted and the appeal is allowed. Since the appeal has been allowed on a question of law and the dispute cannot be resolved on appeal, the application is remitted to the tribunal for reconsideration. 14 Report dated 28 August 2019 exhibited to Mr Mirkovic’s affidavit of 28 October 2019. -- 8 of 8 --