Azzopardi v Tractor Implement Supply Company of Australia Pty Ltd [2014] QCATA 104

CITATION: Azzopardi v Tractor Implement Supply Company of Australia Pty Ltd [2014] QCATA 104 PARTIES: Raymond Azzopardi (Applicant/Appellant) v Tractor Implement Supply Company of Australia Pty Ltd (Respondent) APPLICATION NUMBER: APL415 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 30 April 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Pickering v McArthur [2005] QCA 294, applied APPEARANCES and REPRESENTATION (if any): 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 [1] Mr Azzopardi had problems with his Kubota tractor. He tried to fix it himself, but could not. He took it to a Kubota dealer, who identified a faulty -- 1 of 3 -- 2 hydraulics pump. Mr Azzopardi bought and fitted a new pump but he continued to have problems. A hydraulics specialist told Mr Azzopardi that the dealer supplied the wrong pump. [2] Mr Azzopardi then took his tractor to Tractor Implement Supply Company of Australia (TISCA). TISCA did some work on the tractor and charged Mr Azzopardi $955.85. Mr Azzopardi wanted his money back because his tractor still did not work properly. He filed a claim in the tribunal. A Magistrate, sitting as an ordinary member of the tribunal, dismissed his claim. [3] Mr Azzopardi wants to appeal that decision. He says that the tribunal did not act on two applications he filed: one to have a witness attend and give evidence and a second to have TISCA provide a copy of a purchase order. Mr Azzopardi says that the learned Magistrate dissuaded him from calling an expert witness. He says the learned Magistrate accepted the technical expertise of TISCA’s representative, but did not accept his technical expertise. Mr Azzopardi says the learned Magistrate erred in his findings of fact about the cause of the tractor’s problems and the nature of the relationship between Mr Azzopardi and TISCA. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Mr Azzopardi is correct that the tribunal did not action his two applications. Despite Mr Azzopardi’s request, his witness refused to give a statement.3 The learned Magistrate was prepared to grant an adjournment to allow the witness to attend4 but he did point out that reluctant witnesses are often not helpful5. Mr Azzopardi decided to proceed without his witness.6 The learned Magistrate acted appropriately and there is no injustice to Mr Azzopardi. [6] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 1 QCAT Act, s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 Transcript page 1-3, lines 13 -15. 4 Transcript page 1-5, lines 1 – 3. 5 Transcript page 1-5, lines 19 – 26. 6 Transcript page 1-5, lines 43 – 46. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 2 of 3 -- 3 [7] Mr Azzopardi conceded that he was not a qualified tractor mechanic,8 or a hydraulics engineer.9 By contrast, Mr Morrison of TISCA, outlined his qualifications and experience.10 It was open to the learned Magistrate to accept Mr Morrison’s evidence in preference to Mr Azzopardi. For that reason, the learned Magistrate was also entitled to accept Mr Morrison’s explanation of the cause of the problem. [8] The nature of the relationship between Mr Azzopardi and TISCA was not a factor in the learned Magistrate’s decision. Except that he no longer trusted TISCA, Mr Azzopardi did not explain why this might be a ground for leave to appeal, and there is no substance in this ground of appeal. [9] There is nothing in the transcript to persuade me that the learned Magistrate should have taken a different view of the facts. The evidence was capable of supporting the learned Magistrate’s findings. There is no reasonably arguable case that the learned Magistrate was in error. The application for leave to appeal is refused. 8 Transcript page 1-8, line 33. 9 Transcript page 1-8, line 34. 10 Transcript page 1-15, lines 42 - 47. -- 3 of 3 --