Airport Doors (Qld) Pty Ltd v Burton

[2013] QCATA 17

CITATION: Airport Doors (Qld) Pty Ltd v Burton [2013] QCATA 17

PARTIES:	Airport Doors (Qld) Pty Ltd (Appellant)
v
Brian John Burton (Respondent)

APPLICATION NUMBER: APL228-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
David Paratz, Member

DELIVERED ON: 30 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS: Minor civil debt – no error in law

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 (QCAT Act).

REASONS FOR DECISION

Senior Member Oliver

1. In this matter the Appeal Tribunal consisted of Mr Paratz, QCAT Member and me.  I have had the benefit of reading his reasons in draft.  I agree with his reasons, and his conclusions, and the order he proposes.

Member Paratz

1. This is an appeal against a decision of an Adjudicator in a minor civil debt application in relation to the supply and installation of two remotely operated electric roller doors on an industrial shed.

1. The application was heard at Wynnum on 24 May 2012.  Mr Burton brought the application seeking relief from payment of a sum of money, namely $5,494.52 and compensation for the cost of repair and completion of the roller door and associated electricals. 

1. Mr Burton was given relief from payment of the amount of $5,494.52, and Airport Doors Pty Ltd (Airport) were ordered to pay Mr Burton the amount of $4,410.00.

1. Mr Burton had ordered two doors in July 2011 which were similar to some he had previously obtained from Airport and which were very satisfactory.  They were described as M profile, with 3 phase Brake motors, a Photo Electric beam and remote controllers.

1. Airport installed some doors, but they were not the correct profile, and the installation was unsatisfactory as to the placement of the manual chain and the exposure of the motors to water ingress, and the permanent connection to a power source.

1. Despite protracted negotiations and revised quotations over a six month period, the parties were unable to satisfactorily resolve the matter.

1. Airport has appealed the decision on the following grounds:

Questions of fact -  Key witness did not appear at the hearing

-  Evidence presented was factually inaccurate

-  Witnesses to be subpoenaed

1. Airport seeks the following orders:

Reversal of decision

Permit access to Airport Doors (Qld) Pty Ltd to enable installation to be completed and outstanding invoice to be paid by Mr Brian John Burton as per accepted quotation.

1. The parties have lodged written submissions in relation to the appeal.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The submissions by Airport do not address why leave to appeal should be granted.  Its submissions revisit and raise evidence in relation to the merits of the case.

1. I have read the transcript of the proceedings.  The hearing took 2 hours 33 minutes.  Oral evidence was given by Mr Brian Burton, by his son Shaun Burton, by Mr Richard Carr (a builder called by Mr Burton) and by Mr Czapp who was a director of Airport.  Each party had an opportunity to reply to matters raised by the other party, and to address the adjudicator. 

1. The adjudicator gave his decision at the conclusion of the evidence and submissions. 

1. I am entirely satisfied that the matter was heard in a proper manner.

1. This appeal is unfounded.  The grounds of appeal do not raise any error of law or procedure.  They plainly state that they relate to questions of fact.  Questions of fact are for the determination by the primary hearing, and are only reheard if some error in those proceedings are shown.

1. The grounds of appeal are puzzling in any event, as Airport did not raise any issue as to witnesses or subpoenas at the time of the hearing.  It seems that Airport has reviewed its case and presentation after the event, and is now seeking a “second bite at the cherry”. 

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1] 

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. There is nothing in the transcript that even suggests to me that the learned adjudicator should have taken a different view of the facts.

1. Airport does not raise in their submissions any error made by the learned adjudicator, and do not show any injustice caused to it.  No error is apparent.

1. There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.