Ace Global Trading Pty Ltd v Mad About Campers [2011] QCATA 3

CITATION: Ace Global Trading Pty Ltd v Mad About Campers [2011] QCATA 3 PARTIES: Barry Jamison trading as Ace Global Trading Pty Ltd (Applicant) v Troy Kimberley and Kylie Kimberley trading as Mad About Campers (Respondent) APPLICATION NUMBER: APL111-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Acting President Ms Michelle Howard, Member DELIVERED ON: 14 January 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the application for leave to appeal be refused. CATCHWORDS : PROCEDURE- MINOR CIVIL DISPUTE- Queensland Civil and Administrative Tribunal Act 2009- section 142(3)(a)(i); 147(2)-where adjudicator dismissed claim for reimbursement for camper trailer and compensation for faulty wiring and accommodation costs and for return of trailer to supplier-where applicant/appellant filed application for leave to appeal- whether leave should be granted- where applicant/appellant seeks to adduce additional evidence if appeal proceeds. APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers in the absence of the parties. -- 1 of 7 -- 2 REASONS FOR DECISION Kingham, J: I have had the advantage of reading the reasons of Ms Howard with which I concur. Howard, Member: History of the Application [1] An adjudicator made orders on 18 May 2010 dismissing the applicant’s claim for $7,785 said to arise out of the purchase of a camper trailer from the respondent. The claim included the cost of the camper trailer of $6695; and a claim for $1000 for ‘not having the use’ of the camper trailer, together with the fee for filing of the application. The applicant also sought orders for the return of the camper trailer to the respondent. The applicant now seeks leave to appeal the adjudicator’s decision. [2] The applicant advances numerous grounds for his appeal which in summary are to the effect that many facts presented and accepted by the adjudicator at the hearing were untrue; that his expert evidence was ignored although expert evidence was not presented by the other party; that the camper trailer purchased from the respondent was not fit and safe for its intended use; and that justice was not done. [3] Orders were made by the Appeals Tribunal that the application for leave to appeal (and the appeal, if leave is granted) be determined on the papers after the filing of written submissions by both parties. Both parties filed written submissions. The Legal Considerations [4] Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) because the original decision involves a minor civil dispute. [5] Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage 1 ; there is a reasonably arguable case that the primary decision-maker made an error 2 and there are reasonable prospects that the applicant would be granted orders in its favour; 3 or to correct a substantial injustice to the applicant caused by error. 4 [6] A finding of fact will generally not be disturbed on appeal if the evidence before the tribunal supports the inferences drawn and facts found. 5 1 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 355 (Mason CJ). -- 2 of 7 -- 3 [7] Under section 147(2) of the QCAT Act, an appeal must be decided by way of rehearing. The Appeals Tribunal may make its decision with or without the hearing of additional evidence, as it sees fit. Accordingly, the parties to the appeal are not entitled as of right to adduce additional evidence on the hearing of the appeal, although the Appeals Tribunal may, in its discretion, admit additional evidence. [8] The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.6 There is a public interest in the finality of litigation. 7 Generally for additional evidence to be admitted, it must be shown that the additional evidence sought to be relied upon at appeal was not available and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if admitted there would be a different result; and that it is credible 8 . The Adjudicator’s Decision [9] The adjudicator delivered detailed reasons for decision. She found that the camper trailer was ordered by the applicant and was built to the applicant’s specifications. It was built at a total cost of $6695. Electric brakes and a handbrake were specially ordered by the applicant as a non-standard item at a cost of some $1000, and handrails at a cost of $80. [10] Each of the issues of concern about the camper trailer identified by the applicant at the hearing, and the evidence of both parties about those issues was considered in the adjudicator’s reasons for decision. The issues raised were that the brake wiring was not properly undertaken; the wheels were too big for the applicant’s van which was to tow the camper trailer; the spare tyre was not attached to the trailer by a chain; some of the workmanship on the camper trailer was poor, namely the 56 kg toolbox supplied by the applicant was fitted with three screws; and the registration sticker was incorrectly placed. The applicant also alleged that he was promised special tyre rims which were not provided. [11] The adjudicator was not satisfied that the applicant had demonstrated that the brakes, wheels and workmanship on the camper trailer were not satisfactory, and nor that the contractual arrangements between the parties had been breached. She considered the issues raised regarding the workmanship as insignificant and petty. The significant aspects of the evidence relied upon and findings made by her are considered briefly in the following paragraphs. Brake-wiring and the Brakes [12] Regarding the brake wiring, the applicant provided a brief handwritten report from RACQ which was Exhibit 2 in the proceedings. The inspector, 6 See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. 7 Warr v Santos [1973] 1 NSWLR 432, 440; and R v Bayliss [2002] NSWCCA 11. 8 Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178. -- 3 of 7 -- 4 whose qualifications and experience were not stated, noted that there was no protective conduit and no grommets fitted to the wiring where it passes through the under body framework. Although the applicant’s evidence was that there had not been problems with the brakes, the RACQ inspector stated that as fitted it could cause a short circuit. [13] The respondent presented evidence through Troy Kimberley, a qualified mechanic, was that the wires were insulated and wrapped in black plastic conduit, as he said was standard, and that grommets were not required because the wiring was placed in a box section. His evidence was that grommets would be required if it was possible the wires would rub if they were placed in a narrow passageway. [14] It is clear that the adjudicator preferred the respondent’s evidence. Wheels, Tyres and Rims [15] The applicant‘s evidence was that the wheels were too big for his Toyota van and caused the trailer to sit up too high and consequently no weight could be placed in the van. He relied upon the Toyota Handbook which he said stated that 60 percent of the weight should be in the front of the camper trailer. He also gave evidence that he was to be provided special rims at no extra cost. [16] The respondent’s evidence was to the effect that the applicant wanted the same size diameter wheels on the trailer as were on the van. He said that those supplied were semi-off road tyres to provide for road and some minimal off-road use. The rims provided were a six stud rim like the van, when the respondent usually supplied 5 stud rims. In his evidence, although the adjudicator did not refer to it specifically, he explained that the rims were 15 inch rims, as opposed to the 16 inch rims on the van, but because the tyre had a higher profile, the diameter was the same. He explained that the 16 inch rims are very expensive. [17] He also considered that because of the brakes, the trailer could handle as much load as required, although he had advised the applicant not to put the heavy toolbox at the front of the trailer as it may interfere with weight distribution. [18] The adjudicator accepted the respondent’s evidence that the applicant received what he contracted for. [19] Regarding the spare tyre, the applicant gave evidence that the respondent had promised it would be on a chain and fitted underneath the camper trailer. [20] The respondent said that the tyre could not be placed at the front of the trailer because the toolbox supplied by the applicant for fitting was so large. He had said the tyre would be chained and secured under the trailer if possible, but it was not possible. -- 4 of 7 -- 5 [21] It is clear from the reasons for decision that the adjudicator preferred the respondent’s evidence. Workmanship [22] The applicant asserted that the 3 screws used to affix the toolbox were inadequate and that the registration sticker was incorrectly placed on the wrong side of the trailer according to directions with the sticker. [23] The respondent said that he considered the screws adequate for the purpose, and were 3 times larger than those he uses for smaller toolboxes. The screws were fastened to the bottom of the toolbox and through to the drill bar. [24] The respondent was unaware that there was a correct side, and thought the sticker need only be visible. [25] The adjudicator considered these issues insignificant. Expenses Claim [26] The claim for $1000 said by the applicant to be for the costs of hotels as the camper trailer could not be used. Receipts were not presented. [27] The expenses claim was dismissed by the adjudicator on the basis that it was not substantiated. The Applicant’s additional evidence [28] The applicant seeks to adduce additional evidence to support his appeal, in the event that leave is granted to appeal. [29] The bundle of documents produced by the applicant include a memorandum to the applicant from the respondent about lowering the camper through fitting with 16 inch rims and tyres and the costs that would be involved; a bundle of receipts for hotel and motel accommodation; an affidavit of Andrew Smith from RACQ; a copy of information from the Toyota manual; some photographs; a quotation from Trailers 2000 dated 21 January 2010 for another trailer without brakes; a copy of an unsent email from Richard Allsop of SOS Automotive Pty Ltd to QCAT dated 6 October 2010 expressing an opinion that the tool box had no role in overloading and lowering the front of the trailer; a copy of the registration certificate and attached instructions for applying the label; a tax invoice from Burleigh Heads Auto Electrical Services Pty Ltd to rewire the trailer at a cost of, it appears $145.00 plus GST; and various emails between the applicant and respondent in December 2009. Submissions of the Parties [30] The applicant’s submissions do not address arguments to support the granting of leave to appeal. The submissions detail facts which the adjudicator accepted which the appellant says are untrue and attach the -- 5 of 7 -- 6 volume of additional evidence which he argues support his contentions. If leave to appeal is granted, consideration would be given to whether under section 147(2) of the QCAT Act, the Appeal Tribunal is prepared to allow this additional evidence. [31] The respondent submits that the appellant has not satisfied the criteria to be granted leave to appeal, and specifically has not addressed the basis for the appeal or drawn a logical connection between the grounds for appeal and the written submissions he relies upon. The respondent submits that the application for leave to appeal should be dismissed. Discussion and Decision [32] The applicant’s grounds of appeal suggest one potential or possible error of law; namely that his expert evidence was ignored although expert evidence was not presented by the respondent. [33] The qualifications and experience of the RACQ inspector were unknown and the opinion expressed by him untested. The adjudicator had the opportunity to hear from Troy Kimberley on behalf of the respondent, and ask questions. Mr Kimberley is an expert, albeit, with a self-interest given that he trades with Kylie Kimberley as Mad About Campers. The adjudicator, noting that he was a qualified mechanic and had considerable experience with camper trailers, preferred his evidence, as she was entitled to do. Her findings are supported by evidence and there is no basis identified upon which they would be set aside by this Tribunal if leave was granted for the appeal to proceed. [34] On several occasions the adjudicator has, without specifically saying so or why she has done so, preferred the evidence of the respondent regarding the events which occurred. She was entitled to do so. Although she has not specifically explained why she preferred it, this is implicit from her reasons for decision. [35] She explains that the respondents had made considerable efforts to satisfy the applicant’s concerns and do whatever was necessary to satisfy him that the issues he raised were remedied to his satisfaction including offering to have an independent third party look at the camper trailer to identify any problems and, if any, after the respondent had remedied them, to provide a roadworthy certificate, but these reasonable efforts had been rejected by the applicant. Also, they offered to sell the trailer on his behalf, but he had rejected that suggestion. The applicant wants to return the camper trailer to them and receive a full refund, despite the fact that it was a non-standard order and that given the effluxion of time it is no longer new and could not be sold as new. [36] Reasons for decision given by an adjudicator in a busy and time- pressured list of minor civil disputes should not be criticised for some lack of detail when the basis for the decision is clear, as it is in this case. -- 6 of 7 -- 7 [37] In the circumstances, a reasonably arguable case does not arise that the adjudicator made an error. She made a well-reasoned decision according to law on the evidence presented to her. Accordingly, on the evidence before the adjudicator, there are not reasonable prospects that the appeal would succeed as there is no basis which arises upon which the findings of fact or the decision itself might be disturbed. [38] There is not a question of general importance arising in the proceeding such that a decision of the Appeals Tribunal would be of public advantage. [39] The circumstances do not support a finding that a substantial injustice has been caused to the applicant by an error made in the proceeding. His primary argument seems to be that many of the facts presented to the adjudicator and accepted by her were untrue. He seeks to adduce additional evidence with a view to securing a different result. If leave was granted for the appeal to proceed, it would be a matter for this Appeals Tribunal to consider whether any additional evidence was allowed on the rehearing. [40] The primary purpose of the appeal process in the Tribunal is to allow errors made by the decision-maker, in this case, an adjudicator, to be corrected. It is not to allow an applicant to have a second opportunity to present their case. Each party has the opportunity at the hearing to present their case. It is apparent from the transcript that the adjudicator afforded the applicant every opportunity to do so. It is not now for him to say that he wishes to present additional evidence which may or may not produce a different result. [41] In any event, this Appeals Tribunal has the discretion to allow additional evidence. In the absence of a substantial injustice, an Appeals Tribunal will generally be reluctant to allow new or additional evidence unless it evidence which was not available or obtainable with reasonable diligence at the time of the hearing. The additional evidence which the applicant would seek to present was available or obtainable at the time of the hearing. This additional evidence does not suggest that substantial injustice has occurred or that a different result will necessarily be achieved if it was to be admitted. For example, it does not follow that because there are receipts for accommodation that orders would be made for reimbursement of them. Also, it would still be open to the Tribunal to prefer the evidence of Troy Kimberley over Andrew Smith’s evidence. Accordingly, the additional evidence itself does not provide support for the granting of leave, and even if leave to appeal was granted for another reason, it would not be admitted by this Appeals Tribunal as evidence at the rehearing. [42] In all of the circumstances, the Tribunal concludes that there is no basis upon which to grant leave for the appeal to proceed and the application is dismissed. -- 7 of 7 --