Camiller ATF Camiller Family Trust t/as Price Range Quality Autos v Hooper [2013] QCATA 78

CITATION: Camiller ATF Camiller Family Trust t/as Price Range Quality Autos v Hooper [2013] QCATA 78 PARTIES: Camiller ATF Camiller Family Trust t/as Price Range Quality Autos (Applicant/Appellant) V Hooper (Respondent) APPLICATION NUMBER: APL396 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 12 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Australian Consumer Law, s 55 Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited -- 1 of 3 -- 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] Mr Hooper bought a 1992 Mazda Bravo from Mr Camiller. Three weeks and 819 km later, the engine seized. Mr Hooper wanted Mr Camiller to fix or replace the Mazda under the dealer‟s statutory warranty. Mr Camiller refused, saying that the engine seized because Mr Hooper continued to drive the car when the temperature gauge was “in the red”. The Adjudicator preferred Mr Hooper‟s evidence and ordered Mr Camiller pay Mr Hooper $4,600. [2] Mr Camiller wants to appeal that decision. He says that the learned Adjudicator overlooked crucial facts in the case. He says that, because Mr Hooper continued to drive the Mazda, he no longer has any rights under statutory warranty or the Australian Consumer Law. Mr Camiller also says that he does not know what section of the Australian Consumer Law “has been broken”. [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] Mr Camiller revisits the facts in his submission. The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.5 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.6 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.7 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 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 2 of 3 -- 3 [5] The learned Adjudicator acknowledged8 that there was some debate about the cause of the Mazda‟s failure. He preferred Mr Hooper‟s evidence that he could not pull over safely when he first noticed the engine temperature. The learned Adjudicator found that Mr Hooper was not negligent in his actions and that the Mazda was not fit for the purpose. Those findings are open on the evidence and there is nothing in the transcript to persuade me the learned Adjudicator should have taken a different view. [6] My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.9 I cannot find an error in the learned Adjudicator‟s decision. [7] The learned Adjudicator referred to s 55 of the Australian Consumer Law in his decision.10 Mr Linghan, Mr Camiller‟s representative at the hearing, was familiar with the obligations that the Australian Consumer Law imposes on sellers. I do not accept that Mr Camiller was confused or disadvantaged in the learned Adjudicator‟s reference to the Australian Consumer Law. [8] 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. 8 Transcript page 23 9 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. 10 Transcript page 25 -- 3 of 3 --