Diesel Engine Rebuilding Australia v Petersen
[2014] QCATA 186
•21 July 2014
| CITATION: | Diesel Engine Rebuilding Australia v Petersen [2014] QCATA 186 |
| PARTIES: | Diesel Engine Rebuilding Australia (Applicant/Appellant) |
| v | |
| Adam Petersen (trading as Bobcat Bob) (Respondent) |
| APPLICATION NUMBER: | APL181-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 21 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where sale of reconditioned goods – whether goods of acceptable quality within meaning of Australian Consumer Law – whether goods fit for disclosed purpose – where refund of purchase price ordered – whether applicant shows arguable appellable error – application refused Australian Consumer Law (Cth), s 2, s 3, s 24, s 25, s 54, s 55, s 259, s 276 Fair Trading Act 1989 (Qld), s 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61, s 142, s 226 Australian Competition and Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619; [1998] FCA 180 |
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
The applicant/appellant (“Diesel”) is a registered firm trading as a motor rebuilder at Nerang, Queensland.
The respondent (“Bobcat”) is an excavation and earthmoving contractor, carrying on business at Weston, near Kurri Kurri, New South Wales.
In or about April 2013 Bobcat purchased from Diesel a reconditioned replacement motor for the price of $13,000 (including GST). It was to be an unsatisfactory transaction, from Bobcat’s point of view.
Proceedings to date
On 11 September 2013 Bobcat commenced these proceedings as a minor civil (consumer) dispute, alleging that the subject engine was defective, and claiming a total of $20,552.60, including the cost of purchase, transport costs, installation costs, an expert’s fee, accommodation, and filing fee.
In particular, Bobcat claimed that the engine supplied by Diesel leaked oil, and that a crack in the block caused water or coolant to contaminate the oil supply. In an attempt to remedy these defects, Bobcat removed the engine, returned it to Diesel at Weston, and then took it back to Nerang, refitted it, and removed it again, at considerable expense.[1]
[1]As detailed in schedule appended to the originating process.
In short, Bobcat says that the engine was not of acceptable quality, and was not fit for the purpose for which it was sold and purchased.
By counter-application filed on 1 October 2013, Diesel denied liability, and alleged, inter alia, that Bobcat, contrary to the terms of Diesel’s contractual warranty, failed to show that the engine was properly installed, serviced, and operated.
The matter came on for hearing on 22 November 2013. Sixty-six pages of oral evidence and subsequent written submissions were received, and a reserved decision was delivered on 28 March 2014. It was ordered that Bobcat return the engine to Diesel within 28 days, and that within 28 days of such return, Diesel pay Bobcat the sum of $14,014.60. Of that amount, $13,000 represented a refund of the purchase price, $730 for transporting the engine to and fro between Nerang and Weston, and a mechanic’s expenses. Also allowed was a filing fee of $284.60.
An application by Diesel for a stay of proceedings was refused on 30 May 2014.
The primary decision
As noted above, Bobcat sought $20,552.60 in all, but the award was $6,538 less than the claim. The Adjudicator explained that ‘the diminution of the recovery [was] reflected in disallowing the other separate elements of the claim’.[2]
[2]Reasons for Decision 28 March 2014 [12].
The rationale for this ‘diminution’ is as follows:
The limited evidence available raises some doubt or suspicion that [Bobcat], may have contributed directly or indirectly to the failure of a final resolution ... from [sic] what might have happened to the engine while it was in the possession of [Bobcat]. That suspicion is enough to diminish any successful outcome for [Bobcat].[3]
[3]Ibid [10].
On the point of “contribution” the Adjudicator noted, without explicitly accepting, Diesel’s submission that Bobcat –
... failed to supply the radiator to connect to the engine for testing, and failed to supply evidence that of the subject radiator having been flushed/cleaned or replaced. The required items had been used by [Bobcat] in another truck.[4]
[4]Ibid [9].
On 14 April 2014 Diesel filed this application for leave to appeal.[5] The grounds of the proposed appeal are not stated succinctly in Part C of Form 39, as is required. However, I shall do my best to distil them from an attached document, comprising 2 pages of small print.[6] (Another copy of that document has been filed as Diesel’s submissions on appeal.)
[5]As required by QCAT Act s 142(3)(a)(i).
[6]Document on letterhead of Diesel, signed by “Anthony Floyd, Workshop Manager”.
Grounds of appeal
Ground 1:
The Adjudicator appears to have made two [contradictory] decisions ... In paragraph [10] [he] states: “The limited evidence available raises some doubt or suspicion that [Bobcat] ... may have contributed to the failure of a final resolution.” [But] in paragraph [12] [he] states “On balance [Bobcat] is entitled to a refund of ... $13,000 ... on the basis that ... the engine was not ... of acceptable quality and was not fit for the purpose”. ... The fact that [the Adjudicator] ... indicates that [Bobcat] has caused enough suspicion to diminish any successful outcome appears to us that he also agrees that [Bobcat] has not complied with the warranty conditions.
It is not contradictory for a court to find a defendant liable, and at the same time to hold that the claimant has not done enough to minimise (“mitigate”) the amount of his loss. That is the case here. The Adjudicator accepted Bobcat’s evidence of a faulty engine block, but reduced the claim on the ‘suspicion’ that Bobcat ‘may have contributed directly or indirectly to the failure of a final resolution’. In this regard Diesel seems fortunate, for even when the civil standard of proof applies (as here) it can hardly be said that suspicion amounts to proof, according to the evidence, on the balance of probabilities. On an issue of failure to mitigate, the onus of proof was upon Diesel, not Bobcat.[7] However, as Bobcat has not cross-appealed, this matter need not be taken further.
[7]Clark v NZI Life Ltd [1991] 2 Qd R 11; Sheldon v Sun Alliance Ltd (1989) 53 SASR 97.
Bobcat gave evidence of two main defects in the subject engine, namely oil leaks, and the incursion of radiator fluid into the oil supply. Bobcat fixed the first defect itself, but asserted, in effect, that the second, allegedly caused by a crack in the engine block, was a major failure, within the meaning of the Australian Consumer Law (“ACL”).[8]
[8]ACL s 259(3). The Australian Consumer Law, forming part of the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974) is Queensland law by virtue of the Fair Trading Act 1989 s 16.
In fact the Adjudicator held that the goods were ‘not of acceptable quality, and ... not fit for [Bobcat’s disclosed] purpose’.[9] Those findings implicitly refer to relevant provisions of the ACL.[10] Plainly Diesel is unwilling to accept them, but it is not a ground of appeal, or an error law, that the appellant prefers a different result. It is not an appellable error to accept one case, and to reject the other, when the decision has rational support in the evidence. In this case the decision in favour of Bobcat is based on the evidence of Adam Petersen, Mark Petersen, and an independent expert, Ference Truck Repairs of Thornton NSW. The acceptance of their evidence was a question of fact and credit for the Adjudicator; it is not a matter to be re-opened on appeal.
[9]Reasons for Decision 28 March 2014 [12].
[10]ACL ss 54 and 55 respectively.
Diesel seeks to disparage the independence of Ference, without any evidence to support such a contention. The mere fact that an expert witness is in the same trade, or in the same locality, or even, perhaps was previously known to a party does not mean that his evidence must be discounted. Even tribunals, such as commercial arbitrators, are not held to the same standards of detachment as Supreme Court judges.[11] Besides, there is uncontradicted evidence that Bobcat had no dealings with Ference before or after the latter delivered its report.[12]
[11]See Thorneton Avenue Pty Ltd v Body Corporate for the Avenues [2013] QCAT 173 at [30] – [31] and authorities there cited.
[12]Submission of Bobcat filed 30 January 2013.
This ground is misconceived.
Ground 2:
It appears that [the Adjudicator] has made his decision based on the alleged fact that [Bobcat] has purchased another engine. This would be hearsay as at no point has Bobcat Bob produced ... an invoice proving this fact ... [T]his would mean this claim is based on [Bobcat] changing their mind, if this is the case then under Australian Consumer Law [Bobcat] is not entitled to a refund.
Bobcat (Adam Petersen) gave direct evidence of his purchasing of another engine.[13] The description of that evidence as hearsay evinces a radical misunderstanding of the hearsay rule. Direct evidence does not become hearsay merely because it is not in documentary form. Furthermore, the submission is irrelevant. Having found the subject engine defective, Bobcat was perfectly free to buy another. Its decision to do so was simply a reluctant remedy for an unsatisfactory state of affairs. There is no substance in this ground.
[13]Transcript of hearing 22 November 2013, page 52 lines 28 – 47.
Ground 3:
[T]he ... dispute is actually over an alleged water leak that is allegedly unrepairable. [It] is still yet to be proven. [sic] ... [T]here are no signs of this engine having an internal leak ...
This is simply an assertion that the appellant disagrees with a decision that was the adjudicator’s prerogative to make. As noted above, and repeated below, that is not a viable ground of appeal.
Ground 4:
We are extremely confused with the QCAT decision, since Australian Consumer Law does not appear to have been taken into consideration ... we feel this decision is wrong and unjust. ... This engine was most definitely fit for its purpose and was also of an acceptable standard. ... We supplied [it] with the belief [it] was free of defects.
The decision in question applies sections 54 and 55 of the ACL, with a succinct statement of what those sections provide. It is not essential that a decision in a minor civil dispute, conducted by litigants in person, should provide a lengthy or learned exposition of the law. Indeed, a detailed examination of the ACL would hardly have assisted the appellant, as the summary following may show.
A person who purchases goods for $40,000 or less, for use in its business, is a consumer.[14] Second hand goods are covered.[15] The “guarantees” mandated by the ACL cannot be overridden by contractual terms, such as the complicated small print in Diesel’s ‘Warranty Terms and Conditions - Reconditioned Motors and Secondhand Motors’.[16] Liability for non-compliance with the ACL is strict and objective.[17] A vendor’s subjective ‘belief’ that goods are ‘free from defects’ is no defence. Further, contractual terms which limit the evidence that one party can adduce in seeking relief, or which seek to impose an evidential burden on a party may be deemed unfair, and hence void.[18] It is at least arguable that Diesel’s ‘Warranty Terms and Conditions’ are in that category.
[14]ACL s 3.
[15]Definition of “goods” ACL s 2(f).
[16]ACL s 276.
[17]Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232) and objective: Australian Competition and Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619; [1998] FCA 180.
[18]ACL ss 24, 25.
The assertion that ‘this engine was most definitely fit for its purpose and was also of an acceptable standard’ is simply another expression of the appellant’s opinion that its subjective view should prevail over the lawful decision of the Tribunal.
Ground 4 does not support the application for leave to appeal.
Ground 5:
[The Adjudicator] took more than the 90 days specified in QCAT Practice Direction No 4 of 2013, in fact he took 126 days. This would stretch anyone [sic] memory as to submissions and the body language of the hearing date.
This submission overlooks the fact that, on 22 January 2014, the Adjudicator directed the parties to file supplementary submissions in writing. That procedure was foreshadowed at the hearing on 22 November 2013.[19]
[19]Transcript of hearing 22 November 2013, page 64 lines 41 – 44.
Pursuant to the directions that ensued, Bobcat and Diesel filed additional material on 22 January 2014, and Bobcat made a brief reply on 30 January 2014. It follows that only 51 days elapsed between the completion of the evidence and delivery of the Adjudicator’s decision; it was delivered, therefore, well within the time specified in Practice Direction No. 4 of 2013.
In any event, non-compliance with a Practice Direction is not an error of law or ground of appeal. Even time limits in the QCAT Act may be extended by the Tribunal. Similarly, other procedural requirements may be waived.[20] A Practice Direction, on the other hand, lacks the status of subordinate, let alone principal legislation.[21]
[20]QCAT Act s 61(1)(b),(c).
[21]QCAT Act s 226(3).
There is no substance in the fifth ground.
Conditions and limitations of applications for leave to appeal
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person.
The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (itself an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes meet that description.
An essential, and much misapprehended point is that an application for leave to appeal is not an opportunity to re-run the trial, or to “second guess” the original decision. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[22] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[23] Many of the issues now raised by Diesel are simply attempts to re-litigate issues already determined at the hearing. It is not for an Appeal Tribunal to substitute its own decision on the merits, even if it were inclined to do so.
[22]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[23]Robinson v Corr [2011] QCATA 302 at [7].
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 deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[24] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[25]
[24]Fox v Percy (2003) 214 CLR 118 at 125-126.
[25]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[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.
Conclusion
Applying those principles to the present application, I can discern no appellable error. Therefore the application for leave must be refused.
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