Beta Memorials Pty Ltd v Mirkovic

Case [2023] QCATA 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Beta Memorials Pty Ltd v Mirkovic [2023] QCATA 68

PARTIES:
BETA MEMORIALS PTY LTD

(applicant)

v
DRAGAN MIRCOVIC

(respondent)

APPLICATION NO/S:

APL154-21

ORIGINATING APPLICATION NO/S:

MCDO25 of 2019

MATTER TYPE:

Appeals

DELIVERED ON:

14 June 2023

HEARING DATE:

5 June 2023

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1.    The application for leave to appeal is granted.

2.    The decision and orders of the Tribunal delivered on 21 April 2021 are set aside.

3.    These proceedings are remitted to another adjudicator for rehearing and determination at a date to be fixed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – consumer dispute – where construction of grave memorial subject of contract – where major defect in headstone involved – whether failure caused by supplier’s default or act of consumer – where evidence of consumer’s interference adduced - where evidence not considered – whether omission to consider evidence legal error - where error of law discerned - where leave to appeal granted and appeal allowed – where remitted to primary tribunal for rehearing

Competition and Consumer Act 2010 (Cth) Schedule 2 Australian Consumer Law (‘ACL’) s 54, s 268
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 3, s 4, s 57, s 95, s 142, s 143, s 216

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

Hoskins v Repatriation Commission (1991) 23 FCR 443

JM v QFG and KG [2000] 1 Qd R 373
Kermanioun v Comcare (1998) ALD 503; [1998] FCA 1529
L J Hooker v Stafford [2020] QCATA 94

McGarry v Coates [2013] QCATA 32

Myers v Medical Practitioners Board (2007) 18 VR 48

Pappas v Meiklejohn’s Accountants [2017] QCATA 60
Sali v SPC Limited (1993) 67 ALJR 841
The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Young v Cesta-Incani (2007) 49 MVR 31; [2007] NSWCA 229

APPEARANCES & REPRESENTATION:

Appellant:  P Mason instructed by Chan Lawyers
Respondent: S-J Tan instructed by Gold Coast Community Legal Centre

REASONS FOR DECISION

INTRODUCTION 

  1. In March 2018 the respondent to this application (‘Mirkovic’) engaged the applicant (‘Beta’) to construct a headstone on his father’s grave in the Southport Lawn cemetery at Nerang.

  2. The construction took place on 1 and 2 November 2018.

  3. Three days later, on 8 November 2018 the local authority condemned the structure as unstable and a danger to members of the public.[1]

    [1]Gold Coast City Council to Beta, 5 November 2018.

  4. It is now common ground, as the Adjudicator found[2], that Beta’s construction was unfit for purpose, and unacceptable within the meaning of the Australian Consumer Law.[3]

    [2]Decision of tribunal  21 April…

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AGLC
Beta Memorials Pty Ltd v Mirkovic [2023] QCATA 68
Case
[2023] QCATA 68
Decision Date

CaseChat Overview and Summary

In Beta Memorials Pty Ltd v Mirkovic, the court dealt with a consumer dispute regarding the construction of a grave memorial. The primary issue before the court was whether the failure in the headstone was caused by the supplier's default or by the consumer's actions. Specifically, there was evidence that the consumer had shaken the headstone, which was deemed significant in determining the cause of the defect. The court was tasked with assessing whether the primary tribunal erred by not considering this evidence and if such an omission constituted a legal error.

The court found that the primary tribunal had indeed failed to consider the evidence of the consumer's interference with the headstone, and this omission amounted to a legal error. The court reasoned that a failure to give sufficient or any reasons for a decision on a central issue invalidates a judicial decision. Given the importance of this evidence in determining the cause of the defect, the court concluded that the primary tribunal had overlooked a submission worthy of serious consideration, leading to an error of law.

Consequently, the court granted the application for leave to appeal and set aside the decision of the Tribunal. The matter was remitted to another adjudicator for rehearing and determination. The court emphasised the importance of finality in litigation and the public interest in ensuring that tribunals do not waste resources on disputes that could be resolved through negotiation or compromise.

ORDERS:

1. The application for leave to appeal is granted.
2. The decision and orders of the Tribunal delivered on 21 April 2021 are set aside.
3. These proceedings are remitted to another adjudicator for rehearing and determination at a date to be fixed.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The decision and orders of the Tribunal delivered on 21 April 2021 are set aside.

3. These proceedings are remitted to another adjudicator for rehearing and determination at a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the resumed hearing on 3 August 2020 Taylor deposed inter alia:The next morning [2 November] Mr Mirkovic came straight to the site… walked straight up to the site in a very brisk manner, grabbed the column and shook it violently.[17][Concerning clients generally] They go and check the headstone and we tell them explicitly: ‘Don’t touch the headstone, please, for at least a week’.[18]Q. When you returned next day, was it more or less than 24 hours? A (Taylor): A lot less than 24 hours.[19] … It was a violent shake.[20][T]his gentleman [Mirkovich] has shaken the headstone in our presence.[21]The movement was the very next day [2 November] when he rocked the headstone in my presence.[22][17]T page 2-16 lines 4-7.[18]T page 2-16 lines 20-21.[19]T page 2 lines 16-19.[20]T page 2-23 lines 15-16.[21]T page 25 line 22.[22]T page 2-39 lines 31-32.Evidence of Masters The evidence of the employee Masters included the following:I just remember we went there to silicon or detail a few lines. I remember this person coming over, Dragan, [Mirkovic] and [his] shaking the actual headstone. He was rocking back and forth, which, when we left [1 November] it was solid.[23]Q: And you very clearly saw him shake the headstone? A: Yes.[24][23]T page 2-58 lines 14-16 (Masters). [24]T page 2-72 line 26. ‘Mr Masters’ account of the day is not helpful at all’[25]. This dismissive comment seems unduly critical.[25]T page 76 lines 11-12. At all events there is quite a deal of evidence, be it accepted or rejected, that ‘Mirkovic moved it’.[26] Yet, with respect, the brief section of the decision entitled ‘Consideration’ of Decisions and Evidence’[27] virtually ignores that evidence. No considered reasons for the omission appear.[26]D paragraph [65].[27]D pages 11-12. A failure to give sufficient or any reasons for a decision on a central issue invalidates a judicial decision.[28] ‘[If a] submission worthy of serious consideration … is not dealt with, one ought to infer that that it has been overlooked, giving rise to an error of law’.[29] Regretfully, I am bound to draw that inference here.[28]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Kermanioun v Comcare (1998) ALD 503; [1998] FCA 1529: Young v Cesta-Incani (2007) 49 MVR 31; [2007] NSWCA 229.[29]Hoskins v Repatriation Commission (1991) 23 FCR 443 at 448 per Pincus J.Resolution What, then, should be done? An application for leave to appeal is not an occasion to conduct a trial of issues of fact and credit. Unlike a primary tribunal, decision-makers in an appeal tribunal does not have the benefit of seeing and hearing the parties and their witnesses. Decisions on fact and credit cannot be determined by reading a transcript. Within the bounds of law and rationality such decisions are the prerogative of the primary judge.[30] Yet this dispute about a relatively modest sum has already consumed a disproportionate amount of this busy tribunal’s time and public resources in two trials and two appeals.[31] Meanwhile other litigants, often with questions of greater importance, wait in the queue.[32] There is a major public interest in finality of litigation, which QCAT is specifically designed to serve.[33] It is with great reluctance that I raise the possibility of a third trial, but there is a legal obligation to do so. That unfortunate event can only be averted if the parties sheathe their swords and negotiate some reasonable compromise – a resolution devoutly to be wished.[30]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 ; JM v QFG and KG [2000] 1 Qd R 373 at 391; Myers v Medical Practitioners Board (2007) 18 VR 48 at [53].[31]The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9] and [10]; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9]-[10]; Pappas v Meiklejohn’s Accountants [2017] QCATA 60 at [10] (Thomas QC).[32]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.[33]QCAT Act ss 3(b), 4(b), (c), 142(3)(b).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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