Geoff Walsh Engine Parts Pty Ltd v Marshall
[2011] QCATA 81
•5 April 2011
| CITATION: | Geoff Walsh Engine Parts Pty Ltd v Marshall [2011] QCATA 81 |
| PARTIES: | Geoff Walsh Engine Parts Pty Ltd (Applicant/Appellant) |
| v | |
| Ken Marshall (Respondent) |
APPLICATION NUMBER: APL359-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 5 April 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent bought a generator from and had it repaired by the applicant/appellant – where the respondent refused to pay for the repairs on the grounds that the generator still was not working even after repair – where the Magistrate at first instance ordered that the respondent return the generator, be paid a full refund of the purchase price and relief of payment of $363 for the cost of repairs – where the applicant/appellant now seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142, 147 Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 197 ALR 201, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Ken Marshall, who appears to use the trading name ‘Café Solutions’ (or, perhaps, ‘In the View’ – the papers in the Tribunal proceedings are unclear) bought a generator from Geoff Walsh Engine Parts Pty Ltd for $7,425.00.
Mr Marshall returned the generator to Geoff Walsh the day after purchase, complaining that it did not work. Geoff Walsh repaired the generator and returned it to Café Solutions with an invoice for repair costs of $363.
That invoice was not paid. Café Solutions asserted that, even after repair, the generator did not work so it filed an application in QCAT’s Minor Civil Disputes jurisdiction claiming a refund of the purchase price, and relief from payment of $363 repair costs.
At a hearing on 10 December 2010 a Magistrate, sitting as a QCAT member, ordered that: Café Solutions return the generator to Geoff Walsh; that Geoff Walsh make a full refund of the purchase price within 2 weeks of the return of the generator; and, that Café Solutions pay Geoff Walsh’s repair costs of $363.
Geoff Walsh has sought leave to appeal that decision. Leave is necessary: s 142(3) of the Queensland Civil and Administrative Tribunal Act 2009.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Geoff Walsh says it wants to appeal on ‘a question of fact’. It says that: the learned Magistrate limited the evidence that Geoff Walsh could provide; that too much weight and credence was placed, by the presiding Magistrate, on a document from Café Solutions’ mechanic which was unsigned; and, that this Appeal Tribunal should reconsider the dispute in light of material filed with the application for leave to appeal.
Both the transcript and the original Tribunal file are silent as to what material Geoff Walsh put before the Magistrate on 10 December 2010. I note, however, that the statutory declarations submitted with the application for leave to appeal postdate the hearing.
Geoff Walsh has not explained why this evidence could not have been available at the hearing before the learned Magistrate and I can see no reason why it could not have been available, given the statutory declarations were completed by a director and an employee of Geoff Walsh.
Because any appeal here would hinge upon questions of fact, if leave to appeal were to be granted then the appeal would proceed on the basis of a rehearing: QCAT Act, s 147. Under s 147(2) the Appeal Tribunal has a discretion whether to admit ‘additional evidence’, a phrase which usually means evidence over and above what was presented at the original hearing. That discretion would not usually be exercised when a party has, as here, simply failed to put relevant evidence before the original hearing when there is nothing to suggest it was unable to, or somehow prevented from, doing so.
In any event, findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
The learned Magistrate found that the generator was defective. That finding was reasonably open on the evidence presented to him at the hearing. In the circumstances set out earlier Geoff Walsh cannot, now, complain because fresh evidence, obtained after the hearing, puts those findings in doubt.
Geoff Walsh has not pointed to any question of general importance that the Appeal Tribunal should consider, nor has it pointed to any substantial injustice to it which ought to be corrected by giving leave.
Leave to appeal should be refused.
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