Gollan v Vaccaneo

[2013] QCATA 228

CITATION: Gollan v Vaccaneo [2013] QCATA 228

PARTIES:	William Campbell Gollan (Appellant)
V
Mary Vaccaneo (Respondent)

APPLICATION NUMBER: APL212 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 5 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

MINOR CIVIL DISPUTE – where order to repair car – where parties did not comply with order – where application to reopen – where new order made - where application for leave to appeal on merits – 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

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. Ms Vaccaneo bought a 1997 Kia Sportage from Mr Gollan for $4,900. Only a couple of days after she bought the car, and having driven a short distance, Ms Vaccaneo discovered that the engine had “cooked” and needed replacement. On 11 December 2012, the tribunal ordered that Ms Vaccaneo deliver the car back to Mr Gollan and that Mr Gollan have the engine fully repaired by 28 February 2013.

2. Ms Vaccaneo applied to reopen the proceeding because Mr Gollan did not comply with the tribunal’s order. On 23 April 2013, the tribunal ordered that Ms Vaccaneo deliver her car to a third party on 26 April 2013 and the third party do the necessary work by 31 May 2013.

3. Mr Gollan wants to appeal the learned Adjudicator’s second decision. He says that the learned Adjudicator erred in finding that Mr Gollan was responsible for the condition of the motor. He says that the order of 11 December should not have been extended because Ms Vaccaneo failed to deliver the car as required. He complains that the learned Adjudicator was insulting and disrespectful, and took no account of Mr Gollan’s sworn statements. He says that the learned Adjudicator was biased. He says that the second orders are not an extension of the first orders but new directives.

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. Mr Gollan’s first ground of appeal is that the learned Adjudicator made him liable to fix Ms Vaccaneo’s car. The learned Adjudicator made that decision in December. Mr Gollan took no action to appeal that decision.  At the hearing in April, Mr Gollan agreed to fix the car[5]. This application for leave to appeal is not expressed as an application to appeal the first decision. Even if it was, Mr Gollan has not explained his delay in filing the appeal. The only logical conclusion I can draw is that Mr Gollan wants to appeal only the April decision.

   [5]        Transcript at 26:44.

6. Therefore, I cannot consider whether the learned Adjudicator’s decision about liability was in error. I can only consider whether he was right to vary the original orders.

7. Mr Gollan’s perception of bias is understandable. He still thought that he shouldn’t have to repair Ms Vaccaneo’s car. His view of the hearing is coloured by that simple misunderstanding.

8. I have listened carefully to the transcript of the April hearing. The learned Adjudicator was short with Mr Gollan. He did question the validity of statutory declarations that were signed the day before the hearing but related to matters occurring some time ago[6]. The learned Adjudicator took statements under oath from the Vaccaneo family because Mr Gollan challenged their truthfulness[7]. The learned Adjudicator did question Mr Gollan’s business methods because Mr Gollan did not return any of Mr Vaccaneo’s phone calls[8]. But the learned Adjudicator was not insulting or disrespectful. He made his views clear; that he did not believe Mr Gollan. He raised his voice; to be heard over Mr Gollan who was being argumentative. Perhaps the learned Adjudicator could have been more temperate in his language but I am not persuaded that his conduct amounted to a failure to provide procedural fairness.

   [6]            Transcript at approximately 20:35.

   [7]        Transcript at approximately10:49.

   [8]        Transcript at approximately 19:01.

9. I have also listened to the transcript of the hearing in December. Mr Gollan’s submission that the learned Adjudicator was dismissive or disrespectful is without foundation.

10. Mr Gollan’s last complaint is that the new orders require him to pay an extra $1,000 for the replacement engine for Ms Vaccaneo’s car. I fail to see how that can be true. If Mr Gollan was prepared to comply with the December order, he should have ordered and paid for the engine, ready to put it into Ms Vaccaneo’s car. If he did not order the engine, and the price has increased, then he must bear the consequences of his actions.

11. The tribunal has no enforcement powers. Usually, its orders are enforced through the Magistrates Court. It would have been much simpler for all concerned if the learned Adjudicator had made a money order, rather than an order which gave Mr Gollan the opportunity to repair the car and save some money.  It would have been much simpler if Ms Vaccaneo had simply had the car repaired and claimed the cost of repairs from Mr Gollan. By crafting orders that were designed to save both parties money, the learned Adjudicator made a decision that would have raised issues for enforcement by the Magistrates Court. While the tribunal has a mandate to deal with matters in a way that is economical, informal and quick, it should not make orders that are difficult to enforce or do not provide the necessary finality.

1. There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.