JA & JB Boyle Pty Ltd t/as Whitsunday Funerals & Crematorium v RS & RA Morton Plumbing t/as Morton's Plumbing
[2014] QCATA 100
•30 April 2014
| CITATION: | JA & JB Boyle Pty Ltd t/as Whitsunday Funerals & Crematorium v RS & RA Morton Plumbing t/as Morton’s Plumbing [2014] QCATA 100 |
| PARTIES: | JA & JB Boyle Pty Ltd t/as Whitsunday Funerals & Crematorium (Applicant/Appellant) |
| v | |
| RS & RA Morton Plumbing t/as Morton’s Plumbing (Respondent) |
| APPLICATION NUMBER: | APL450 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 30 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for accepting further evidence – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, 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 (Qld) (QCAT Act).
REASONS FOR DECISION
RS & RA Morton Plumbing t/as Morton’s Plumbing (Morton’s Plumbing) did some gas fitting work for JA & JB Boyle Pty Ltd t/as Whitsunday Funerals & Crematorium (Whitsunday Funerals). Morton’s Plumbing issued three invoices totalling $7,727.89. Whitsunday Funerals did not pay any of the invoices so Morton’s Plumbing filed a claim in the tribunal. Whitsunday Funerals responded by saying that Morton’s Plumbing failed to perform the work properly and the work had to be redone. A Magistrate, sitting as an ordinary member of the tribunal, ordered Whitsunday Funerals pay Morton’s Plumbing.
Whitsunday Funerals wants to appeal that decision. Mr Boyle, a director of the company, says that he was denied a fair hearing. He says that the learned Magistrate treated him like an idiot; that the learned Magistrate refused to look at relevant documents which proved that Mr Morton from Morton’s Plumbing was not telling the truth; and, that the learned Magistrate made his mind up before entering the hearing.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:
There are numerous authorities, in varying language but with unvarying emphasis, that 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][2005] QCA 294 at [3].
The learned Magistrate told the parties that he read the file prior to the hearing.[3] A Magistrate or Member may do that, to identify the issues and save time in the hearing. The learned Magistrate cannot be criticised for pre-reading the file.
[3]Transcript page 1-2, line 42.
Having a sense of the dispute does not amount to a decision maker having decided a dispute before entering the hearing. The learned Magistrate did express views about the relative strength of the parties’ claims as they appeared on paper. He was entitled to express that view although, perhaps, his language did not create the requisite atmosphere to deal with matters in a way that was “accessible, fair [and] just.” The learned Magistrate’s frustration seems to have arisen because Whitsunday Funerals did not file any material to support its response. The learned Magistrate did not know any details about the defective work, including how much it cost Whitsunday Funerals to rectify the defects.
Despite the learned Magistrate’s early remarks, Whitsunday Funerals was not denied the right to a fair hearing. A review of the transcript shows that Mr Boyle had ample opportunity to put his case to the learned Magistrate. He directed the learned Magistrate’s attention to the relevant parts of documents he handed up during the hearing.[4] The transcript does not support Whitsunday Funerals’ claim that it did not receive a fair hearing.
[4]See, for example, transcript pages 1-14, lines 10 to 23, page 1-20, line 19, page 1-22, lines 35 to 40, page 1-31, lines 14 to 41.
Whitsunday Funerals referred the appeals tribunal to Chapter 3 Part 3-2 of the Australian Consumer Law. Part 3-2 is headed “Consumer Transactions”. “Consumer” is defined in section 3. Gas fitting works associated with a crematorium are not services “ordinarily acquired for personal, domestic or household use”. The Australian Consumer Law does not assist Whitsunday Funerals.
Whitsunday Funerals filed a statutory declaration from the sales manager of Elgas in support of 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 Whitsunday Funerals 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?[5]
[5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Whitsunday Funerals does not explain why it could not obtain this evidence prior to the hearing. It is of limited assistance and will not have an important impact on the result of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.
Whitsunday Funerals’ primary complaint is that the learned Magistrate erred in his findings of fact.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Magistrate considered all of the arguments now advanced before the appeals tribunal. He was aware that the credibility of the parties was an issue, because Mr Boyle asserted many times that Mr Morton was lying.[8] The learned Magistrate preferred Morton’s Plumbing’s evidence and this conclusion was open on the evidence.
[8]See, for example, transcript pages 1-36 at line 39, 1-37 at lines 8 and 30, 1-40 at lines 2-3, and 1-45 at line 12.
The evidence is capable of supporting the learned Magistrate’s decision. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
0
4
0