Amos v The Trustee for K Shore Investment Trust T/A Battery World Albion [2017] QCATA 117

CITATION: Amos v The Trustee for K Shore Investment Trust T/A Battery World Albion [2017] QCATA 117 PARTIES: Edward Amos (Applicant) v The Trustee for K Shore Investment Trust T/A Battery World Albion (Respondent) APPLICATION NUMBER: APL105-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 2 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 17 March 2017 is set aside. 4. The matter is returned to a differently constituted tribunal for reconsideration with the hearing of such additional evidence as deemed meet by the tribunal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where consumer purchased phone battery – where supplier and consumer disputed condition of battery supplied – where supplier offered refund but not refund of freight costs – where tribunal dismissed consumer’s claim – whether tribunal correct on determination that there was no evidence available for consideration at hearing save for an unsworn statement of evidence – where parties gave sworn oral testimony – whether grounds for leave to appeal -- 1 of 4 -- 2 Pickering v McArthur [2005] QCA 294 APPEARANCES: 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 On 1 February 2016 Mr Amos ordered a mobile phone battery from the respondent. The cost was $64.15. That included a freight charge of $13.20. Mr Amos went to collect the battery on 4 February 2016. The respondent’s employee fitted the battery to Mr Amos’ phone but the phone did not work. Mr Amos claimed the battery was faulty. He wanted his money back including the freight charge. The respondent tested the battery and said the battery was working correctly. The respondent suggested that it was Mr Amos’ telephone that was faulty, not the battery. Though the respondent considered the new battery was working, the respondent offered Mr Amos his money back save for the freight charges. Mr Amos rejected that. He wanted his freight charges paid back as well. A disturbance ensued and the police came. Mr Amos left the shop with the new battery and without any refund. Mr Amos then applied to the tribunal to recover his money. The application came on for hearing on 17 March 2017. Mr Amos’ application was dismissed. Mr Amos has now sought leave to appeal that decision. Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction leave to appeal must first be obtained.1 Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected.2 Mr Amos’ grounds of appeal appear twofold: a) That the tribunal gave excessive weight to an unsworn statement of evidence of a witness who did not attend the hearing. b) That the tribunal erroneously determined that the unsworn statement of evidence was the only evidence available to the tribunal in determining the issue in dispute. 1 QCAT Act, s142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 4 -- 3 Mr Amos gave sworn testimony to the tribunal. His evidence was that his phone was not faulty as claimed by the respondent because it still worked with the old battery in it. He also said he had taken the new battery to Mobile Made Easy in Adelaide Street and that company tested it and said it was faulty. He said he also took it to E and E Electronics in Elizabeth Street who told him the voltage was low. He said he took it to two other shops in the city and they told him the same thing. Mr Shore appeared on behalf of the respondent. He also gave sworn testimony. He was present at the shop when Mr Amos came in to collect his new battery. He said he had tested the battery on the day and the battery showed as fully charged but despite that Mr Amos’ phone would not turn on. He said the phone would not turn on with the old battery either. An unsworn statement of evidence of a worker, Mr Tutton, who was there with Mr Shore on the day, had been filed the day before hearing by the respondent. It was to similar effect to the oral testimony given by Mr Shore. The tribunal said the statement of evidence of Mr Tutton was unsworn and therefore little weight would be attributed to it. However thereafter the tribunal concluded there was no evidence before it other than the unsworn statement of evidence of Mr Tutton.3 The only evidence was Mr Tutton’s statement of evidence “which is not entirely satisfactory. But it is better than nothing at all.”4 The tribunal said there was no evidence before it that Mr Amos went to the four mobile phone repair businesses. The tribunal also stated however that Mr Amos had given truthful evidence. In response to Mr Amos saying he had told the truth the tribunal said “I don’t doubt you see that as being the truth. I’ve got no doubt about that whatsoever. I’m not suggesting you’re a dishonest person or you’re telling fibs to the tribunal. But…. We cannot make a finding of fact where there is no evidence. Put simply, today you have not presented any evidence that we can take into account. Mr Shore hasn’t done all that much better, but at least he’s got a statement from an employee of the company saying the battery was good.”5 The tribunal was in error in concluding it had to find against Mr Amos because there was no other evidence available to it to allow it to reach a determination in the matter. The tribunal had available for consideration the sworn evidence of both Mr Amos and Mr Shore. If the tribunal accepted Mr Amos’ evidence was true and correct and preferred the evidence of Mr Amos to that of Mr Shore then the tribunal was entitled to find in favour of Mr Amos based on his oral testimony alone. No weight might have been given the unsworn statement by Mr Tutton in such circumstances where the evidence given in the statement did no more than 3 Transcript at Page 9 Lines13-14, 25-26. 4 T10 L21-23. 5 T10 L29-36. -- 3 of 4 -- 4 repeat that given by Mr Shore. Alternatively the tribunal may have preferred the evidence of Mr Shore to that of Mr Amos with some weight or no weight given to Mr Tutton’s statement. It seems clear however that the tribunal did not consider either the sworn evidence of Mr Amos nor that of Mr Shore as evidence available for consideration in the matter. In that regard the tribunal was wrong and substantial injustice has been done to Mr Amos in respect of outcome, despite the minor monetary nature of the claim involved. Leave to appeal should be granted and the appeal allowed. The decision of 17 March 2017 is set aside. The matter is returned to a differently constituted tribunal for reconsideration with the hearing of such additional evidence as deemed meet by the tribunal. -- 4 of 4 --