Australian CCTV & Alarm Specialists Pty Ltd v Willowbank Surgery
[2014] QCATA 39
•12 March 2014
| CITATION: | Australian CCTV & Alarm Specialists Pty Ltd v Willowbank Surgery [2014] QCATA 39 |
| PARTIES: | Australian CCTV & Alarm Specialists Pty Ltd (Appellant) |
| v | |
| Willowbank Surgery (Respondent) |
| APPLICATION NUMBER: | APL446-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 25 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 12 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – supply and installation of security equipment – whether offer accepted – if accepted, in what amount – whether equipment as warranted – whether recipient entitled to reject equipment – eventual order by consent – whether new material admissible on appeal – whether consent order appellable – whether reasonably appellable error shown – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 20 Alroe v Medical Board of Queensland [2004] QCA 364 Drew v Bundaberg Regional Council [2011] QCA 359 Herrman v Nurses Board (SA) (1993) 61 SASR 325 International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Orr v Holmes (1948) 76 CLR 632 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Walton v Gardiner (1993) 177 CLR 378 |
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
Outline of facts and issues
The appellant, Australian CCTV & Alarm Specialists Pty Ltd (“Specialists”), carries on a business at Commerce Drive, Robina as a supplier of security alarms and kindred television equipment.
The respondent, Willowbank Surgery (“Willowbank”), is a group medical practice situated at O’Neills Road, Willowbank, near Amberley.
On 26 April 2012 Willowbank suffered a criminal break-in, involving damage to its security closed-circuit television equipment.
On 27 April 2012 Willowbank’s office manager, Tracey Jewel, telephoned Specialists and sought their quotation for the necessary replacements and repairs. She says that Specialists quoted $1,500.00,[1] which Specialists denies. Although the figure of $1,500.00 may seem rather modest, there is, in evidence, an internal memorandum of Willowbank recording that figure.[2] While this contemporary note is not corroboration,[3] a tribunal may treat it as evidence of consistency.[4]
[1]Transcript of hearing 9 August 2013, (“Transcript”) page 12 line 14, page 33 lines 22 and 33 (Jewel).
[2]Willowbank email (internal) 27 April 2012.
[3]Herrman v Nurses Board (SA) (1993) 61 SASR 325; Transcript page 37 line 45.
[4]Alroe v Medical Board of Queensland [2004] QCA 364 at [16].
On 2 May 2012 Specialists addressed a quotation of $4,620.00 to Willowbank, but the form of acceptance thereon[5] is unsigned. An internal memorandum of Willowbank asserts that the original quotation was only $1,500.00 and that ‘Graham’ (presumably an employee of Specialists) said ‘don’t worry about cost we [will] work something out’.[6]
[5]‘Client authorisation’.
[6]Willowbank email (internal) 3 May 2012.
Willowbank has consistently maintained that it told Specialists that the new camera equipment must be ‘like for like’, that is, of the same or higher quality than the equipment to be replaced.[7]
[7]Willowbank email (internal) 27 April 2012 (alleging phone conversation on 26 April 2012 with ‘Brendan’ [Rauch, director of appellant]; letter Willowbank to Specialists 7 June 2012; Response filed 17 May 2013; Transcript page 14 line 3 (Jewel).
It is the crux of Willowbank’s case that the equipment supplied by Specialists is inferior to the items replaced. This complaint was made without delay.[8] Specialists does not dispute the ‘like for like’ stipulation, but contends that the quality of the goods supplied was equal, or superior to that of the items replaced.
[8]26 April 2012 (Willowbank email (internal) 27 April 2012); letter Willowbank to Specialists 7 June 2012.
On 2 May 2013 Specialists began these proceedings, claiming $5,555.94,[9] including filing fees of $98.
[9]Since reduced to $4,895.94: Specialists’ submissions on appeal, 17 January 2014.
Willowbank’s Response, filed on 17 May 2013, alleged that the goods supplied did not conform with the ‘like for like’ term, that it was entitled to return them and that it had requested their removal several times, without success.[10]
[10]Transcript page 14 lines 21-24 (Nguyen, Jewel), page 19 lines 34-44.
Whether contract concluded
Mediation failed and the matter was heard on 9 August 2013. The Adjudicator noted, critically, that the ‘client authorisation’ section of Specialists’ written quotation was unsigned.[11] Mr Rauch, for Specialists, claimed that it was accepted by phone ‘between 27 April and 2 May’, but could not be more precise.[12] Subsequently the Adjudicator told Mr Rauch,
You let [a subcontractor] do this paperwork and you have not got it. ... When it is signed and dated you have got a rolled gold contract ... You have not got that this time and ... [your] business practices are bad.[13]
[11]Ibid page 8 line 46, page 16 line 8 (‘We’re here because of your business practices’).
[12]Ibid page 8 lines 33-38.
[13]Ibid page 37 lines 37-41.
A consent order is formulated
The Adjudicator then began to explore the possibilities of what effectively became a consent order. That conclusion may reasonably be withdrawn from a rather less than lucid transcript. It finds support in the fact that the Tribunal made no formal findings as to the existence of a contract, the agreed price (if any) or the quality of the goods. In the end, however, the allegedly sub-standard quality of the merchandise seems to have assumed more importance than the disputed price:
Adjudicator Le Mass: Would you prefer to take the gear back, let him start again?
Mr Rauch: Yep ... It is going to be worth less money to us ...
Adjudicator Le Mass I know it is and this was never going to be a good transaction for you ... Bad business practice, right? ... (to Dr Nyguyen of Willowbank) Do you consent to the gear being taken out?
Dr Nguyen: Absolutely, yes. ...
Adjudicator: Okay. So, Mr Rauch, how long would it take you to do this work?
Mr Rauch: About three hours to remove the equipment ... I will be doing it personally.
Adjudicator: My orders are this, the applicant remove all [relevant] equipment from [Willowbank] within 14 days in a good and workman-like manner. Upon removal, [Willowbank] will pay to [Specialists] the sum of $450 within seven days of removal. ... Any questions? ...
Mr Rauch: No ... What we are saying is that is we are taking the camera equipment out ... Whatever is relating to the camera side of things, forget it. We will get paid the $450 for the repairs to the phone line and everything else. Eddie’s labour to install the cameras, we are not getting.[14]
[14]Ibid page 38 lines 27-43, page 39 lines 6-9, 27-30, page 40 lines 16-19, page 41 lines 25-34.
Proposed grounds of appeal
Specialists’ proposed grounds of appeal begin as follows:
It has come to our attention that the judge didn’t acknowledge that the defendant had received payment for all the equipment installed from their insurance provider, therefore, acknowledging the authorisation of the installation of the CCTV system by the defendant (for the defendant needed to pass the invoice from ACA Specialist P/L to their insurer.
This does not point to any error in the decision. As the Adjudicator told Mr Rauch, the question of indemnity for damage to the original equipment is a matter between Willowbank and its insurer.[15] It is not an issue in this case.
[15]Ibid page 41 lines 40-41.
The grounds proceed:
Also the fact that the defendants employee stated that she didn’t authorise the installation but in an email by that employee to us requested we change that invoice which was followed up by a phone call from the defendants employee to the ACA Specialist office.
This ground is barely intelligible as it stands. However, a request to change an invoice is not an acceptance of an offer.
The grounds continue:
Throughout this proceeding the defendant stated that the equipment was in a box and it had been removed because he said it was an inferior product – when in fact they have been using this product for the last year.
As noted above, Willowbank’s requests for removal were ignored. There was no evidence that it was using the product ‘for the past year’, other than to test its alleged inferiority. No appellable error is disclosed.
The grounds conclude:
Lastly we requested the hearing be rescheduled to another time as both the salesperson and the technician that conducted the installation were overseas.
Specialists applied for an adjournment on 5 August 2013, four days before the date set for hearing. The stated reason for this application was that a subcontractor who installed the subject equipment was overseas. The Adjudicator responded by taking evidence from a Mr Cowan by international audiolink. Mr Cowan could not confirm Willowbank’s acceptance of a quotation[16] and the quality of installation, as distinct from that of the goods installed, was not in issue.
[16]Ibid page 25 lines 19-20.
Submissions in aid of the application for leave repeat arguments that were not accepted at first instance, and annex copies of several documents, some of which were before the Tribunal and others, of dubious relevance, that were not. So far as the documents already in evidence are concerned, there are no discrepancies between them and the annexes to Specialists’ latest submissions. Other submissions attempt to introduce evidence that was not adduced at the trial, devoid of any explanation for its absence at that time. The reception of additional evidence at the appeal stage is not a routine procedure. If it were, litigation might be intolerably protracted, against the policy of the courts, and of this Tribunal.[17] In so far as Specialists’ new evidence may be relevant, it will not be received now.
[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss 3(b), 4(b) and (c); Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641; Walton v New Lakelands Pty Ltd [2013] QCATA 49 at [5].
Limits of an application for leave to appeal
An application for leave to appeal is not an opportunity to re-present one’s case anew. Nor is it an occasion for ‘second guessing’ questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits[18] or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the only question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[19] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[20] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[21] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[22]
[18]Distinguish QCAT Act s 20 (review jurisdiction).
[19]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at 46 [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[20]Robinson v Corr [2011] QCATA 302 at [7].
[21]Fox v Percy (2003) 214 CLR 118 at 125-126.
[22]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Appealing a consent order
The appellant here faces a further difficultly, in that it seeks to appeal against an order made by consent. It is an abuse of process to attempt to relitigate a case already finalised,[23] particularly one resolved by an order to which the parties have freely, albeit reluctantly consented.[24]
[23]Walton v Gardiner (1993) 177 CLR 378 at 392-393.
[24]Minister for Environment & Conservation v Jack Sims & Son Pty Ltd (2007) 97 SASR 147 at [21].
For this reason, and in view of Specialists’ failure to demonstrate a reasonably appellable error in the primary hearing, leave to appeal must be refused.
ORDER
The application for leave to appeal is dismissed.
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