Hobbs v The Dawson Family Trust t/as Active Gear Rockhampton
[2013] QCATA 158
•31 May 2013
| CITATION: | Hobbs v The Dawson Family Trust t/as Active Gear Rockhampton [2013] QCATA 158 |
| PARTIES: | Brenda Mary Hobbs (Applicant/Appellant) |
| v | |
| The Dawson Family Trust t/as Active Gear Rockhampton (Respondent) |
| APPLICATION NUMBER: | APL006-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 31 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant instructed the respondent to install a towbar – where the respondent incorrectly fitted the towbar and caused damage to the car – where the respondent agreed to repair the damage – where the Tribunal ordered the respondent to repair the damage – where the applicant seeks to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 13(1), s 13(2)(a)(iii) Cachia v Grech [2009] NSWCA 232, cited |
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.
REASONS FOR DECISION
In April 2012, Brenda Hobbs engaged Active Gear Rockhampton to install a towbar on her Holden Sedan. Prior to the work being done Mrs Hobbs told the salesperson at Active Gear that, when the towbar was installed, she did not want a hole to be cut into her bumper bar.
Active Gear did not follow her instructions and incorrectly fitted the towbar, cutting into her bumper bar.
On 31 July 2012, Mrs Hobbs began proceedings in the Minor Civil Disputes jurisdiction of the Tribunal seeking the payment of $1050.00 from Active Gear for the supply, fitting and painting of a replacement bumper bar.
The matter was heard and decided on 4 December 2012 by a Magistrate sitting as a Member of the Tribunal in Rockhampton.
At the hearing, Percy Dawson of Active Gear conceded that his employee had incorrectly cut Mrs Hobbs’ bumper bar and his firm would agree to fix the damage.[1] Mr Dawson told the Tribunal that $1050.00 was, however, excessive and Active Gear could supply, fit and paint a genuine Holden bumper bar for a cost that was (approximately) less than half of her claim.[2]
[1]Transcript of Proceedings, 10:50, 18:38.
[2]Ibid 19:10.
The learned Magistrate ordered Active Gear to replace the bumper bar on Mrs Hobbs’ car with a genuine Holden part by the end of February 2013 and pay Mrs Hobbs’ filing fee of $98.
Mrs Hobbs now seeks leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the QCAT Act.
Her grounds for leave to appeal are, broadly speaking, that the learned Magistrate failed to consider that she has lost faith in Active Gear’s ability to repair her car ‘given the damage caused to the parties’ relationship of trader and consumer by the Respondent’s lack of proper workmanship’.
There are well settled principles for deciding whether leave to appeal should be granted. For minor civil disputes there is no appeal as of right.[3] The requirement that an appeal against the decisions of the Tribunal in its Minor Civil Dispute jurisdiction may be made only once the party has obtained the Appeal Tribunal’s leave implies that those decisions are meant to be final.
[3]QCAT Act s 142(3)(b).
For leave to appeal to be granted not only must there be an error in the primary decision, but the decision must work a substantial injustice to one of the parties.[4] Mrs Hobbs’ submissions do not reveal any appellable error in the process by which the learned Magistrate received evidence, considered the parties’ submissions, or made his findings.
[4]Cachia v Grech [2009] NSWCA 232 at [13].
In a proceeding for a minor civil dispute, the Tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute.[5] The learned Magistrate’s decision was consistent with the orders the Tribunal may make to resolve a minor civil dispute,[6] and was fairly open to him considering Active Gear’s submissions.[7]
[5]QCAT Act s 13(1).
[6]Ibid s 13(2)(a)(iii).
[7]See paragraph [4] of the reasons for decision, above.
The learned Member’s decision was also consistent with the Tribunal’s functions relating to the objects of the QCAT Act: ‘to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as if consistent with achieving justice’.[8]
[8]QCAT Act s 4(c).
In his submissions on behalf of Active Gear, Mr Dawson states that he has written to Mrs Hobbs ‘requesting all the correct and necessary information… so that [it] may repair and complete the job… [by] February 2013.’ He further states that Mrs Hobbs has not replied to his request for information, and instead lodged the current application for leave to appeal.
Leave is not to be given where a party simply desires to re-argue the case, either on existing or additional evidence. Mrs Hobbs also seeks that the Appeal Tribunal consider an additional quote from A1 Panel and Paint for the cost of repairs to her car. Ordinarily, special grounds are needed before additional evidence is received upon an appeal. Quoting Lord Bridge in Langdale v Danby [1982] 3 All E.R. 129 at 137-138, Thomas J (as his Honour then was) stated:
First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.[9]
[9]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
While the additional quote is credible, in as much as Mrs Hobbs has filed an affidavit that it is true, I am not persuaded the first and second criteria are established. First, the quote from A1 Panel and Paint is dated ‘30/11/2012’ which would suggest it was available before the hearing on 4 December 2012. Secondly, it is unlikely that this new quote for $846.18 would have had an important influence on the result of the case, since Mr Dawson submitted that Active Gear could supply, fit and paint the new part for $506.51 – evidence which the learned Magistrate found credible and his decision in that respect was fairly open in the face of that evidence.
It is not enough to express disappointment at the original decision, or a subjective feeling that justice has not been done. With respect, that appears to be the case here.
Mrs Hobbs chose to claim full restitution in circumstances where the facts of the matter made an order requiring Active Gear to perform work to rectify its defects more appropriate and, in light of the evidence, fair and equitable[10].
[10]QCAT Act s 13(1).
For these reasons, the application for leave to appeal must be refused.
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