Gregory and Gregory v Garrard

[2014] QCATA 344

CITATION:	Gregory and Gregory v Garrard [2014] QCATA
344
PARTIES:	James Leggett Gregory Mary Isabel Gregory
(Applicants/Appellants)
v
Matthew John Garrard
(Respondent)
APPLICATION NUMBER:	APL300-14
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Acting Deputy President Stilgoe OAM
DELIVERED ON:	16 December 2014
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal refused.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER/TRADER CLAIM – where second hand engine installed into van – where engine failed – where mechanic started to fix engine – where van owner alleged no authority to fix engine – where van required second replacement engine – where van owner alleged first engine defective – where tribunal dismissed application – whether tribunal considered Australian Consumer Law – whether tribunal proceeding unfair – whether grounds for
leave to appeal
Australian Consumer Law ss 20, 21, 60, 61
Dearman v Dearman (1908) 7 CLR 549 Kioa v West (1985) 159 CLR 550 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd
[1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

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

[1]      Mr and Mrs Gregory own a 1998 Mitsubishi L300 van. In February 2012 Mr Garrard, trading as Jimboomba Tyres and Mechanical, installed a second hand motor into the van, as the original had overheated and

‘cooked’. In July 2013, Mr and Mrs Gregory again had problems with the

engine. Once again, their engine had overheated and ‘cooked’.

[2]      Mr Garrard took the van away. Mr and Mrs Gregory asserted that he was to quote on a repair. Mr Garrard asserted that he was authorised to repair the engine.

[3]      Mr Garrard started work on the engine. He sent the head to a third party

for repair. Mr and Mrs Gregory stopped Mr Garrard’s work on the Mitsubishi. The balance of the van ended up at Mr Garrard’s home.

Eventually, a third party installed another second hand engine.

[4]      Mr and Mrs Gregory wanted Mr Garrard to pay for the second engine.

They asserted that Mr Garrard’s replacement engine, and his services,

were not fit for purpose. They asserted he had abandoned the van which caused them loss and damage. They asserted that he breached his obligations under the Australian Consumer Law. The tribunal dismissed their claim.

[5]      Mr and Mrs Gregory want to appeal that decision. They say the learned Adjudicator did not understand, or apply, the Australian Consumer Law guarantees. They say the learned Adjudicator did not consider

Mr Garrard’s unconscionable conduct. They say the learned Adjudicator’s

decision was based on error and lack of knowledge. They say the learned

Adjudicator’s conduct in the hearing was unreasonable, discriminatory and

disrespectful to Mrs Gregory. They say that the learned Adjudicator did not

comply with the tribunal’s Customer Service Charter. They say the learned

Adjudicator did not consider the provisions of the Uncollected Goods Act.

[6]      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]

[2]3            Pickering v McArthur [2005] QCA 294 at [3].

[7]      Mr and Mrs Gregory submitted a fifty-one page document with their application for leave to appeal. The document, although lengthy, is unhelpful. Mr and Mrs Gregory mix examples of errors of fact with submissions about the law with assertions of new facts, without supporting evidence.

[8]      To the extent that the submissions are new evidence, I will not refer to them. 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 Mr and Mrs Gregory 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

[9]      Mr and Mrs Gregory have provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

[10]     I accept that the learned Adjudicator’s reasons for decision demonstrate

some errors in fact. He states, for example, that there was a two and a half year gap between when Mr Garrard installed the engine and when the van overheated. That is not, however, an error which goes to the heart of his decision.

[11]     The factual dispute, and one for the learned Adjudicator to decide, was whether the Welsh plug in the engine Mr Garrard installed in 2012 was faulty.

[12]     The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal

may interfere if the conclusion is ‘contrary to compelling inferences’ in the

case.[5] My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[6]

[4] 

[5] 

[6]7            Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.

[13]    I have read the material filed in the tribunal below and considered the transcript. Mr and Mrs Gregory had the task of establishing their case. The learned Adjudicator was not satisfied that they had done so. In making that decision, the learned Adjudicator did not need to understand fully the technical details of an internal combustion engine. The evidence

can support the learned Adjudicator’s findings. There is nothing in the

transcript to persuade me that the learned Adjudicator should have taken
a different view of the facts.

[14]     The learned Adjudicator told Mr and Mrs Gregory7 that he would consider the Australian Consumer Law and he did, in fact, consider it. He noted the guarantee as to acceptable quality of goods[8]. He then noted that there was no evidence about what the parties agreed when Mr Garrard replaced the engine. The learned Adjudicator was not prepared to accept that the warranty on a second hand engine would extend for almost 18 months, even if the distance covered during that time was minimal. The learned Adjudicator took account of the warranty given for the second replacement engine, which was three months only. The evidence can support the

learned Adjudicator’s decision and I can find no compelling reason to

come to a different view.

[8] 

[15]     In their submissions to the appeals tribunal, Mr and Mrs Gregory state that their claim is not based on the failed Welsh plug (which was part of the engine installed by Mr Gerrard) but on the unwarranted, unauthorised dismantling of the engine.

[16]     It is apparent from the conclusion of the hearing that Mr and Mrs Gregory felt Mr Garrard had breached a statutory warranty in the supply of services because he carried out work at his home, rather than his workshop[9]. The Australian Consumer Law provides a statutory guarantee that services will be provided with due care and skill[10] and that they will be fit for the purpose[11]. The Australian Consumer Law does not compel the services to be carried out in a licensed workshop if the result is acceptable.

[9] 

[10] 

[11] 

[17]     Unless Mr Garrard damaged the engine during the act of dismantling it, I

do not see how there can be a claim for a breach of s 60 – rendering

services with due care and skill.

[18] I can see that there may a breach of s 61(2) – a guarantee that the work

done would be fit for the purpose. Mr Garrard may have breached that guarantee if the learned Adjudicator found that his authority was limited to giving a quote and he had no authority to strip down the engine and start

the repairs. Mr and Mrs Gregory’s own evidence supports the view that

Mr Garrard was authorised to do more than provide a quote. They told the

learned Adjudicator[12] that Mr Garrard’s wife rang to tell them the van was

fixed. It is implicit in that information that Mr and Mrs Gregory accepted, or

[12]13          Transcript page 1-20, lines 16 – 17.

at least knew, that Mr Garrard was working on the van.

[19]    The van was not damaged because it was left out in the elements. The evidence does not support a finding that it was abandoned.

Whether Mr Gerrard’s insurance covered the van while it was at his home is not relevant. The mere fact the van was at Mr Gerrard’s home does not

support a conclusion that Mr Garrard breached any warranty.

[20]    Mr and Mrs Gregory submitted to the appeal tribunal that Mr Garrard

breached his statutory duty by ‘abandoning the Mitsubishi in the hours of

darkness’.

[21]     Mr Gregory and Mr Garrard had a heated discussion about the Mitsubishi

on 7 August 2013. Mr Gregory’s version of the discussion confirms that

Mr Garrard told him he would drop the van off. Mr Garrard returned the van to Mr and Mrs Gregory on the morning of 8 August 2013. Mr and Mrs Gregory knew that the head was elsewhere, so parts of the engine would be missing. They knew it was coming back. Their relationship with Mr Garrard was strained. It is, therefore, a stretch to say that the Mitsubishi was abandoned.

[22] Mr and Mrs Gregory also submit that Mr Garrard engaged in unconscionable conduct within ss 20, 21 and 22 of the Australian Consumer Law by not allowing them an informed choice about the repair of the van.

[23]    That contention might be right, but a breach of an obligation does not necessarily mean that Mr and Mrs Gregory are entitled to damages. As the learned Adjudicator found13, the engine was damaged and had to be repaired. The most efficient form of repair was to install another engine. The only real choice left to Mr and Mrs Gregory was whether Mr Garrard, or someone else, would do that work. They would always have to bear that cost.

[24]     Mr and Mrs Gregory state that Mr Garrard has retained parts from their engine. Mr and Mrs Gregory do not ask for the return of those parts; they

simply note that it was a breach of Mr Gerrard’s obligations. The learned

Adjudicator acknowledged the claim. He also noted that Mr and Mrs Gregory did not put a value on the parts, so he could not make an order in their favour. The appeal tribunal is in no better position.

[25]    Mr and Mrs Gregory assert that the learned Adjudicator was unreasonable. They say he breached the Customer Service Charter in that he did not respect the dignity of elderly persons. They say the learned Adjudicator interrupted Mr and Mrs Gregory in the presentation of their case.

[26]    The transcript does show the learned Adjudicator interrupted Mr and Mrs Gregory. The real test for the appeal tribunal is whether Mr and Mrs Gregory received procedural fairness. As Mason J (as his Honour then was) observed in Kioa v West,[14] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex

parte Angliss Group (1969) 122 CLR 546 at 552 – 553; National

Companies and Securities Commission v News Corporation Ltd (1984) 156

CLR 296 at 311, 319 – 321.

[14]15 (1985) 159 CLR 550 at 584 – 585.

[27]    The tribunal’s minor civil disputes jurisdiction is a busy one. Often, as

here, the parties have not described the substance of their dispute well.

Often, as here, the facts required for the tribunal’s decision are obscured by extraneous documents, facts and argument. The tribunal’s procedure

will not be exposed to criticism which fails to acknowledge the

circumstances in which they are given, or the pressure of the Adjudicator’s

caseload.

[28]    I read the transcript carefully. I can find no evidence that the learned Adjudicator was discriminatory towards Mrs Gregory.

[29]    I understand that Mr and Mrs Gregory might feel disrespected by the

learned Adjudicator’s interruptions. He was seeking the relevant facts from

a large amount of material in a short time. The basis for

Mr and Mrs Gregory’s claim was difficult to ascertain15.

Mr and Mrs Gregory often did not give direct and succinct answers to the learned Adjudicator’s questions[16]. Although the tribunal process was not

ideal, I am not persuaded that it is grounds for leave to appeal.

[16] 

[30]    Mr and Mrs Gregory take issue with the learned Adjudicator accepting

Mr Garrard’s evidence even though it was not provided by affidavit as the

learned Adjudicator ordered. They say that the learned Adjudicator changed the order for filing documents, putting them at a disadvantage. They say the learned Adjudicator gave Mr Garrard multiple opportunities to put material in, which was unfair.

[31]    I read the transcript differently. The learned Adjudicator was having

trouble understanding Mr and Mrs Gregory’s submission, particularly

relating to the mechanical issues[17]. Mr and Mrs Gregory felt that they were not getting a ‘fair crack of the whip’[18]. The learned Adjudicator told

Mr and Mrs Gregory that he felt they had more to say[19]. For that reason, he allowed Mr and Mrs Gregory to file more material[20].

[17] 

[18] 

[19] 

[20] 

[32]     Because Mr and Mrs Gregory were the applicants, they should have filed

material first. The learned Adjudicator’s order was appropriate and he did

not reverse the order for the filing of material.

[33]     The learned Adjudicator did make orders about the way the new material had to be provided and it is true that Mr Garrard did not comply with that order strictly. The documents were witnessed but were not in affidavit form.

[34]     The point about the documents being sworn is to ensure the witnesses, who cannot be cross-examined, are telling the truth. I agree with the

learned Adjudicator’s findings that the way the evidence was given meets

this fundamental requirement and, therefore, that an error in format is not
critical.

[35]    The Uncollected Goods Act is a New South Wales Act. There is no Queensland equivalent. The learned Adjudicator may only consider legislation that applies in Queensland, so his failure to apply a New South

Wales Act is understandable and correct. Mr and Mrs Gregory’s

application for leave to appeal on this ground must fail.

[36]     There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.

QCAT Act s 142(3)(a)(i).

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at

125 – 126.

Chambers v Jobling (1986) 7 NSWLR 1 at 10.

Transcript page 1-56, lines 23 – 24.

Reasons for decision page 3, lines 39 – 40.

Transcript page 1-57, lines 13 – 17.

Section 60.

Section 61.

Reasons for decision page 5.

See, for example transcript page 1-20, line 22 to page 1-21, line 14.

See, for example, transcript page 1-33, lines 8 – 23.

Transcript page 1-56, lines 13 – 14.

Transcript page 1-56, lines 34 – 35.

Transcript page 1-57, lines 31 – 32.

Transcript page 1-58, lines 7 – 8.