Ferrin v Peter Williams Painting & Decorating Pty Ltd [2018] QCATA 182

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ferrin v Peter Williams Painting & Decorating Pty Ltd [2018] QCATA 182 PARTIES: JOSEPH RAYMOND FERRIN (appellant) v PETER WILLIAMS PAINTING & DECORATING PTY LTD (respondent) APPLICATION NO/S: APL078-18 ORIGINATING APPLICATION NO/S: MCDO189-17 (Maroochydore) MATTER TYPE: Appeals DELIVERED ON: 26 November 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 15 February 2018 is set aside. 4. The matter is returned to a differently constituted Tribunal for reconsideration according to law with or without the hearing of additional evidence as deemed appropriate by the newly constituted Tribunal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for consumer dispute brought in the tribunal – where application dismissed because of failure to appear – where application also dismissed or alternatively dismissed as being out of time – where application to reopen pleadings refused – where the Tribunal in error in respect of the appropriate time limit applicable Australian Consumer Law (Schedule 2 Competition and Consumer Law) 2010 (Cth), s 236(2) Queensland Civil And Administrative Tribunal Act 2009 (Qld), s 139(5) -- 1 of 3 -- 2 Pickering v McArthur [2005] QCA 294 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented by P J Williams 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] In 2012 Mr Ferrin engaged the respondent company to paint a vermiculite ceiling in his unit. He was unhappy with the standard of work. [2] In 2017 he filed an application for Minor Civil Dispute – Consumer Dispute in the QCAT Registry at Maroochydore Magistrates Court. The matter was listed for hearing at 11:30 am on 15 February 2018. Mr Ferrin says he was waiting outside to be called in to the hearing when he was advised that the matter had already been determined and his application had been dismissed. [3] Mr Ferrin filed an application to reopen the proceedings but that application to reopen was also dismissed. [4] Mr Ferrin now seeks leave to appeal the decision dismissing his claim. [5] Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [6] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [7] Mr Ferrin has 2 grounds of appeal. First he says the tribunal made an error in law in dismissing his claim because it was out of time. Secondly the tribunal made an error in refusing his application to reopen because he was present at the court at the time set for hearing. [8] There can be no appeal in respect of the refusal to reopen proceedings. The legislation does not allow it. By section 139(5) of the Queensland Civil And Administrative Tribunal Act 2009 (Qld): The Tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 3 -- 3 [9] Accordingly, in respect of this complaint there can be no leave to appeal or appeal granted. [10] Mr Ferrin’s other ground of appeal, however, is different. The Justice of the Peace who heard the matter gave the following short reasons for decision: The application is dismissed due to nonappearance of applicant and respondent. As well as nonappearance of the parties, the application was out of time as the applicant lodged the application on 25 October 2017 in respect of work that was done in September 2012. Had he appeared, the application would have been dismissed on that basis. [11] Unfortunately it is not clear what time limit the Justice of the Peace was referring to in his reasons. In his application for leave to appeal or appeal Mr Ferrin refers to a time limit of 6 months only being applied because the matter was thought to involve a residential tenancy claim for compensation. It is not made clear how or when Mr Ferrin was advised about a 6 month time limit being applied or that the matter was thought to involve a residential tenancy compensation claim. [12] Regardless, the Justice of the Peace did apply a time limit of less than 6 years from the time of accrual of the cause of action. The claim was a consumer claim and the provisions of the Australian Consumer Law3 (‘ACL’) were applicable. By s 236(2) of the ACL an action seeking recovery of an amount for loss or damage because of a contravention of, amongst other things, the guarantee provisions of the ACL which includes a guarantee that services will be rendered with due care and skill, may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. Mr Ferrin’s claim was brought within any such 6 year time limit. [13] Accordingly it seems clear that the Justice of the Peace made an error of law in applying a shorter time limit than 6 years and dismissing the application on that basis. [14] Mr Ferrin suggests that when he returned home after the hearing there was a message left on his telephone answering machine from QCAT to the effect that Mr Ferrin should not attend the hearing because the decision to dismiss the application had already been made, apparently on the basis of it being out of time. He suggests the message was left shortly after 10 am that morning. This would suggest in turn that the decision to dismiss the application on the basis that it was out of time was the primary basis upon which the application was dismissed rather than any subsequent failure to appear. [15] Leave to appeal under this ground must be granted. The appeal should be allowed and the matter returned to a differently constituted Tribunal for reconsideration according to law with or without the hearing of additional evidence as deemed appropriate by the newly constituted Tribunal. 3 Australian Consumer Law (Schedule 2 Competition and Consumer Law) 2010 (Cth). -- 3 of 3 --