Gough Industries Pty Ltd atf the Gough Family Trust t/as Gough Plastics v Bucknell (No 2)
[2014] QCATA 331
•1 December 2014
| CITATION: | Gough Industries Pty Ltd atf the Gough Family Trust t/as Gough Plastics v Bucknell (No 2) [2014] QCATA 331 |
| PARTIES: | Gough Industries Pty Ltd atf the Gough Family Trust t/as Gough Plastics (Applicant/Appellant) |
| v | |
| Peter Bucknell (Respondent) |
| APPLICATION NUMBER: | APL355-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 1 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where tank filled with molasses failed – where compensation for failed tank and loss of molasses – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
In the summer of 2013/14, North Queensland was in drought. Mr Bucknell’s cows calved in October and, by early January, grass growing rains had not arrived. Mr Bucknell needed to feed his stock. Molasses was in short supply, so Mr Bucknell arranged for a shipment from Tully. The shipment arrived and Mr Bucknell pumped it into a tank he bought from Gough Plastics in 2007. A couple of days later, the tank failed and Mr Bucknell lost about 28 tonnes of molasses. He could ill afford the loss.
Mr Bucknell thought the tank had a 20-year warranty, so he claimed pro rata compensation from Gough Plastics plus compensation for the lost molasses. A Judicial Registrar, sitting in the minor civil disputes jurisdiction of the tribunal, accepted Mr Bucknell’s argument and ordered Gough Plastics pay Mr Bucknell $5,941.30.
Gough Plastics wants to appeal that decision. It says the learned Registrar’s decision was based on incorrect findings and errors of law. It says the learned Registrar made a wrong finding of fact in relation to how much molasses the tank could hold. It says Mr Bucknell failed to prove that the tank failed because of a manufacturing fault. It says that there are other reasons why the tank could have failed.
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].
Gough Plastics filed fresh material with its application for leave to appeal. 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 Gough Plastics 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.
Gough Plastics filed material about the specific gravity of molasses. The learned Registrar does not refer to the specific gravity of molasses. He did accept[4] that the tank could not hold 41 tonnes of molasses. The evidence will not have an important impact on the result of the case because the submissions that rely on the evidence are mere speculation which would require further, detailed evidence to support them.
[4]Transcript page 1-14, lines 1 – 7.
Gough Plastics filed a ‘StandardsMark Licence’ for its tanks issued in May 2009. The tank was delivered in 2007. The fact of a later licence is not relevant to the issues before the learned Registrar. Similarly, a certificate of accuracy dated January 2013, and an engineering report validating tank construction dated 2008 are not relevant to a tank that was delivered in 2007.
I do not understand the relevance of the tank drawing Gough Plastics filed with its submissions. The tank dimensions were before the learned Registrar.
The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Registrar.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Although he did not explicitly state, it seems that the learned Registrar relied upon a legal principle which, translated from its Latin, states that ‘the thing speaks for itself’. In other words, one fact – the failure of the tank – raises a presumption of another fact – that the tank was faulty – until the contrary is proven.
Mr Bucknell’s evidence is consistent with this assumption. Gough Plastics knew that Mr Bucknell intended to store molasses in the tank. He had a document from Gough Plastics that stated ‘the …Tank would not fail during a normal 20 year service life and that during this period would be capable of withstanding ambient air temperatures up to 40°’. There was no evidence of damage to, or interference with, the tank. The evidence was capable of supporting the learned Registrar’s finding that the tank failed because of a manufacturing fault.
Gough Plastics submits that there are alternative explanations. The learned Registrar addressed this issue specifically at the hearing. He asked Gough Plastics’ representative, Mr Gough, in what other ways the tank could burst[7]. Mr Gough replied ‘I don’t know’[8].
[7]Transcript page 1-13, lines 1 – 5.
[8]Transcript page 1-13, lines 3, 7 – 8.
Gough says that it did not offer these explanations at the hearing because it did not want to embarrass Mr Bucknell. It is too late for Mr Gough to now offer explanations, especially as those explanations are unsupported by any evidence. In fact, one of Mr Gough’s possible explanations, that there was sharp objects underneath the tank installation, seems improbable given the photograph before the learned Registrar of the smooth platform of tank stand.
There is nothing in the transcript to persuade me that the learned Registrar should have taken a different view of the facts. There is no reasonably arguable case that the learned Registrar was in error. Leave to appeal should be refused.
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