Aqualine Pool Resurfacing Pty Ltd v Crawshaw [2013] QCATA 193

CITATION: Aqualine Pool Resurfacing Pty Ltd v Crawshaw [2013] QCATA 193 PARTIES: Aqualine Pool Resurfacing Pty Ltd (Appellant) V Mrs Michelle Crawshaw (Respondent) APPLICATION NUMBER: APL033 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 1 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: MINOR CIVIL DISPUTE – where expert report filed – where respondent did not obtain a copy of the report – where report did not comply with Practice Direction 4/09 – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Practice Direction 4 of 2009 Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 214 CLR 118. Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Aqualine Pool Resurfacing Pty Ltd resurfaced Mrs Crawshaw’s pool. She was not happy with the job. She says there was overspray on the coping and the job was rough. She filed a claim in the tribunal for rectification of the work and relief from payment of $2,840 to Aqualine. Aqualine counterclaimed for $2,850 outstanding. The tribunal ordered Aqualine pay Mrs Crawshaw $345. [2] Aqualine wants to appeal that decision. It says that it did not receive a copy of Mrs Crawshaw‘s expert evidence. It says that the expert report does not satisfy the requirements of Practice Direction 4 of 2009. It says that Mrs Crawshaw‘s report was prepared by a competitor, rather than an independent expert. It says that the learned Member placed too much weight on Mrs Crawshaw’s expert report. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [4] In the application for leave to appeal, Aqualine sets out the history of Mrs Crawshaw’s application. The dispute was listed for hearing on 6 June 2012. It was adjourned without further order although it appears that Mrs Crawshaw was encouraged to obtain expert advice. The dispute came on again on 6 July 2012. Mrs Crawshaw had filed an expert report but she had not served Aqualine. Mr John, on behalf of Aqualine complained to the learned Adjudicator that he had asked Mrs Crawshaw for the report but she had refused to provide it.5 The learned Adjudicator read the report into the record6. He gave Aqualine an opportunity to look at the expert’s report and put in its own evidence7. The learned Adjudicator adjourned the hearing 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 Transcript 6 July 2012, page 3, lines 41-43. 6 Transcript 6 July 2012, page 4 lines 1-11. 7 Transcript 6 July 2012, page 5, lines 36-39. -- 2 of 4 -- 3 and told Mr John that he expected Aqualine to be ready when the dispute was next before the tribunal8. [5] Aqualine knew that the tribunal had a copy of Mrs Crawshaw’s expert report. It knew that Mrs Crawshaw had refused to provide it. It knew that the tribunal would decide the dispute when it next came on. Aqualine must take steps to help itself. It could have asked the tribunal to provide a copy of the report. Aqualine cannot sit on its hands and simply say that it did not receive Mrs Crawshaw’s report when there was an easy and obvious way to get it. [6] Aqualine’s submission that Mrs Crawshaw’s report does not comply with Practice Direction 4/09 is correct. The Practice Direction is designed for cases that are more complex than this one and it seems to me that requiring compliance with the Practice Direction in most minor civil disputes would place an unnecessary burden on the parties. The Practice Direction applies unless the tribunal otherwise orders. For completeness, the learned Adjudicator sitting on 6 July 2012 should have ordered that the parties did not need to comply with the Practice Direction. [7] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.10 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.11 [8] Mrs Crawshaw’s report may not have complied with the Practice Direction but it still had some value as evidence. However, the learned Member formed a view about the quality of Aqualine’s work by looking at photographs Mrs Crawshaw supplied, independently of the expert report. He found that there was an unacceptable cosmetic deformity because “it is clearly obvious to the eye”12. The finding was open on the evidence and there is nothing in the transcript to persuade me that the learned Member should have taken a different view of the facts. [9] The learned Member did rely on the report to form a view about the cost of rectification. He noted that this was the only evidence before him13. He noted that Aqualine refused to rectify the work14. Aqualine challenged the report’s findings about the condition of the pool but it did not challenge the 8 Transcript 6 July 2012, page 7, lines 2-3. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 11 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 12 Transcript 10 December 2012, page 7, line 19. 13 Transcript 10 December 2012, page 7, lines 25-28. 14 Transcript 10 December 2012, page 7, lines 32-33. -- 3 of 4 -- 4 rectification cost.15 The learned Member was entitled to accept the cost of rectification and I can find no compelling reason to come to a different view. [10] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 15 Transcript 10 December 2012, page 5, lines 22-25. -- 4 of 4 --