Crocker v Buck-katt Excavations
[2015] QCATA 121
•18 August 2015
| CITATION: | Crocker v Buck-katt Excavations [2015] QCATA 121 |
| PARTIES: | Gavin Crocker (Applicant/Appellant) |
| v | |
| Mohammed Nazeem t/as Buck-katt Excavations (Respondent) |
| APPLICATION NUMBER: | APL193 -15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 August 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 18 August 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where purchase of a diesel pump for watering - where pump failed – where purchaser claimed not fit for purpose – where seller claimed failure due to purchaser error - where tribunal ordered refund of purchase price – where evidence not submitted at hearing - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
| Applicant: | Gavin Crocker |
| Respondent: | Mohammed Nazeem |
REASONS FOR DECISION
In July 2014, Mohammed Nazeem t/as Buck-katt Excavations bought a Megajet 3” cl 10.3 HP diesel truck pump from Gavin Crocker t/as The Engine Place for $4,294.99.
In November 2014, the starter motor failed. It was fixed under warranty. Mr Nazeem returned the pump again in December 2014. Mr Crocker sent the pump to the manufacturer. The manufacturer refused to fix the pump under warranty because, in its view, the pump had not been maintained properly.
Mr Nazeem formed the view that Mr Crocker sold him the wrong pump. He filed a claim in the tribunal for the return of the purchase price. The tribunal agreed, and ordered Mr Crocker pay Mr Nazeem $4,588. Mr Nazeem was to return the pump to Mr Crocker.
Mr Crocker wants to appeal that decision. He says that the tribunal failed to take into account important information, letters and pictures that he had available at the hearing. He says the tribunal failed to consider the consequences of the modified filtration system that Mr Nazeem fitted. He says that the learned Adjudicator was not experienced with mechanical matters and he should have had a professional to advise him. He said the tribunal did not question Mr Nazeem about how often he had replaced the air filter.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Crocker wanted the appeals tribunal to consider the evidence that he had at the earlier hearing, but did not hand up. That evidence consisted of photographs of the pump and an email from one of Mr Crocker’s customers stating that the customer used that type of pump and had no difficulties with it.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Because Mr Crocker did have the evidence available, and he did refer the tribunal to its existence[4] but the tribunal did not receive it, I have determined that the fresh evidence should be admitted.
[4]Transcript page 1-21, lines 17 – 19.
It follows from my decision to allow Mr Crocker’s fresh evidence, that the tribunal failed to take this information into consideration. Mr Crocker must bear some responsibility for that failure; he did not file copies of the material before the hearing, he did not give Mr Nazeem copies and he did not press the point with the tribunal.
Mr Crocker is correct in his submission that the learned Adjudicator was not experienced in mechanical matters. The learned Adjudicator conceded that fact[5]. But tribunal members are not required to be an expert in all things. Instead, they are required to decide issues of law and fact based on the evidence before them. Further, it is not the tribunal’s role to source its own expert evidence on a topic before it. It is for the parties to provide the necessary evidence to the tribunal.
[5]Transcript page 1-22, lines 22 – 26; page 30, line 10.
This was the learned Adjudicator’s difficulty. As he remarked[6], he had no independent third party reports to assist him. In the absence of those reports, the learned Adjudicator accepted Mr Crocker’s expertise[7]. The learned Adjudicator did not err in adopting that approach to the evidence.
[6]Transcript page 1-22, line 33.
[7]Transcript page 1-30, line 42.
It is true that the learned Adjudicator did not consider the consequences of the modified filtration system. Mr Crocker did tell the tribunal what he thought the effect of the modified system would be[8] but the tribunal did not refer to that evidence in its decision.
[8]Transcript page 1-18, lines 12 – 39.
It is also true that the learned Adjudicator did not question Mr Nazeem about how often he replaced the air filter. The learned Adjudicator did make Mr Nazeem give sworn evidence about his maintenance of the pump[9]. He invited Mr Crocker to ask Mr Nazeem questions. Mr Crocker did ask some questions. He did not ask Mr Nazeem how often he replaced the air filter. The learned Adjudicator cannot be at fault for failing to ask a question which Mr Crocker, an acknowledged expert in this engine, failed to ask.
[9]Transcript page 1-24, line 16 to page 1-26, line 30.
The question for me is not whether, in light of the fresh evidence, I should come to a different decision. The question is whether, in light of this evidence, the evidence is still capable of supporting the learned Adjudicator’s decision. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Adjudicator accepted[12], and the photographs showed, that Mr Nazeem did not maintain the pump properly. As for the evidence from Mr Crocker’s customer, the tribunal acknowledged that this evidence existed[13]. The learned Adjudicator based his decision on three essential facts. Firstly, the learned Adjudicator found that Mr Crocker knew he was selling this pump for use in dusty conditions[14]. Secondly, the learned Adjudicator found that, six months after Mr Nazeem bought it, the pump stopped working[15]. Thirdly, the learned Adjudicator accepted Mr Nazeem’s evidence that he regularly cleaned the filters[16].
[12]Transcript page 1-30, lines 40 – 43.
[13]Transcript page 1-30, lines 3 – 6.
[14]Transcript page 1-30, lines 19 – 25.
[15]Transcript page 1-30, lines 27 – 30.
[16]Transcript page 1-31, lines 5 – 14.
The evidence can support those findings. The new evidence is not sufficient to overturn those findings. Even though I might have found differently, Mr Crocker has not established to my satisfaction that the learned Adjudicator was in error.
Leave to appeal should be refused.
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