Chessells v R E & L M Gibson Pty Ltd [2011] QCATA 15

CITATION: Chessells v R E & L M Gibson Pty Ltd [2011] QCATA 15 PARTIES: Mr Douglas John Chessells (Applicant/Appellant) v R E & L M Gibson Pty Ltd t/a Rob Gibson Ford (Respondent) APPLICATION NUMBER: APL210-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 7 February 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS : APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MOTOR VEHICLE REPAIRS – where applicant brought his vehicle to the respondent for repairs – where the respondent carried out tests and supplied parts – where further repairs were required – whether findings supported by evidence Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(a) Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The respondent, R E & L M Gibson Pty Ltd, runs a garage at which Mr Gibson is a mechanic. The appellant, Mr Chessells, took his 1983 Ford to be fixed at the garage. The total amount claimed by the respondent for repairs to Mr Chessells’ car was $1,535.73. [2] Mr Chessells believed the work done to his car was unnecessary. He based this belief on advice provided in a car column in the Courier Mail newspaper, ‘Ask Smithy’. Mr Chessells also believed that Mr Gibson was not qualified to perform the repair work and refused to pay the repair bill. [3] Mr Gibson refused to release the car from his possession until the bill was paid. Mr Chessells brought a minor civil dispute application in this Tribunal on 10 August 2010 seeking to be excused from payment. The matter was heard by a Magistrate acting as a QCAT Adjudicator on 6 September 2010. [4] The learned Magistrate found that the repairs were reasonably necessary and that Mr Gibson was qualified to perform them, and ordered that Mr Chessells pay Mr Gibson the full amount of $1,535.73. [5] On 15 September 2010, Mr Chessells lodged an application for leave to appeal (and, if successful, to appeal) that decision. As this matter arises from a Minor Civil Dispute, leave to appeal is necessary.1 [6] Mr Chessells’ stated ground of appeal is that the learned Magistrate erred at first instance by not properly considering the evidence presented at the hearing so that, he argues, the decision at first instance involved an error of law. [7] The question is whether there was an error in the primary decision. It is not for me to determine where the truth lay as between the different versions given by the parties.2 [8] Whether or not leave to appeal should be granted is a question which may involve a number of enquiries: is there a reasonably arguable case of error in the primary decision;3 is there is a reasonable prospect that the applicant will obtain substantive relief;4 is leave necessary to correct a substantial injustice to the applicant caused by some error;5 or is there a question of general importance upon which further argument, and a 1 Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a). 2 Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at [13]. 5 QUYD Pty Ltd v Marvass Pty Ltd (supra). 2 -- 2 of 3 -- 3 decision of the appellate court or tribunal, would be to the public advantage?6 [9] Here, the transcript shows that Mr Chessells and Mr Gibson both gave oral evidence, on oath, and Mr Chessells submitted documentary evidence, namely the ‘Ask Smithy’ column. The learned Magistrate gave the parties ample opportunity to address each contentious issue. [10] The learned Magistrate correctly observed that, in light of the way the case was brought and presented, the onus of establishing that the work was unnecessary or that for some other reason Mr Chessells should be excused from payment lay upon him. [11] The reasons given by the learned Magistrate traverse the evidence and properly explain, and reveal, the basis for his conclusion that Mr Chessells failed to satisfy that onus. Nothing in Mr Chessells’ submissions shows any error in that process of reasoning, or suggests it was not fairly and reasonably open. As the Magistrate observed, to establish his claim and meet that onus, Mr Chessells needed to do more, as a lay person, than to simply assert that a qualified mechanic (Mr Gibson) had performed unnecessary work. [12] Mr Chessells has not, then, demonstrated an arguable case of error in the primary decision. Nothing in the matter otherwise warrants a grant of leave to appeal, and it should be refused. 6 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. 3 -- 3 of 3 --