Clark v Bridon Spraying & Nursery

[2013] QCATA 293

CITATION: Clark v Bridon Spraying & Nursery
 [2013] QCATA 293

PARTIES:	Mr Anthony Raymond Clark (Applicant)
V
Bridon Spraying & Nursery (Respondent)

APPLICATION NUMBER: APL262 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 29 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where termite damage – where termite inspection did not reveal full extent of termite damage – whether termite controller breached duty of care – whether public advantage in granting leave to appeal – whether substantial injustice – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Bucknell v Robins [2008] QCA 214;
Hill-Douglas v Area Square Pty Ltd[2010] QCATA 125

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Clark owns a house at Mt Tamborine, which is tenanted. In November 2011, the tenants found evidence of termite activity. Mr Harder, from Bridon Spraying & Nursery did a pest inspection. He found some termite activity and treated it. He called at the house again in December 2011, found further evidence of minor termite activity and treated that too.

2. In February 2012, the tenants found more termite activity. This time, Mr Clark engaged Gold Coast Pest Inspections. That company found extensive termite infestation and damage. Mr Clark filed a claim against Bridon for the cost of treating the infestation and the cost of repairing the termite damage. An Adjudicator of the tribunal dismissed Mr Clark’s claim because he was not satisfied that Mr Harder breached his duty of care to Mr Clark.

3. Mr Clark wants to appeal that decision. He says that the learned Adjudicator erred by failing to consider relevant evidence and considering irrelevant evidence. He also says the learned Adjudicator showed bias.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at 2.

   [3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]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.

5. Bias is a very serious allegation. The test is[5]:

   … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.

   [5]        Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

6. Mr Clark says that the learned Adjudicator demonstrated bias by favouring Mr Harder’s evidence without fairly considering Mr Clark’s evidence. That is simply not a good enough reason to suggest that the learned Adjudicator was biased. I have read the transcript of the hearing carefully. I have read the reasons for his decision. There is no evidence to support a finding that the learned Adjudicator did not bring an impartial mind to his decision.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]  However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[8]

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

[7]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[8]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. Mr Clark has listed six instances where, he says, the learned Adjudicator failed to consider relevant evidence. He has listed three instances where, he says, the learned Adjudicator considered irrelevant evidence.

1. The learned Adjudicator considered each of these points during the hearing. He heard evidence from both sides which, naturally, was contradictory. 

1. The learned Adjudicator found Mr Harder did not conduct annual pest inspections. He was entitled to take that view, based on the evidence before him. Mr Clark cannot now appeal on the ground that he now has “records of other annual inspections should the Tribunal require them”.

1. Mr Clark’s submissions about the learned Adjudicator‘s findings deal with semantics. The learned Adjudicator’s found that he could not determine what damage was done to the property between Mr Harder’s visits and February 2012. He also found he could not determine the level of termite activity that existed in November 2011. In coming to these conclusions, the learned Adjudicator relied on the expert opinion of Mr Langley. Mr Clark had a copy of Mr Langley’s report for about two weeks before the hearing[9] but he did not call any evidence to contradict the expert’s views. The learned Adjudicator was entitled to rely on Mr Langley’s report. His findings are open on the evidence and I can find no compelling reason to come to a different view.

   [9]        Transcript page 1-37, line 1.

1. There is no question of general importance that should be determined by the appeals tribunal. The minor civil disputes jurisdiction of the tribunal is not the appropriate forum to determine the standards expected of pest controllers or to monitor their compliance with Standards. There are other agencies that are tasked with, and better equipped for, this function.

1. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal.

1. There is no evidence that a substantial injustice will result if leave is not granted. Financial disadvantage, in the absence of hardship does not amount to “substantial injustice”.[10] 

   [10]Bucknell v Robins [2008] QCA 214; Hill-Douglas v Area Square Pty Ltd[2010] QCATA 125.

1. Leave to appeal should be refused.