Lahey v Davidson
[2013] QCATA 9
•16 January 2013
| CITATION: | Lahey v Davidson [2013] QCATA 9 |
| PARTIES: | Beryl Eileen Lahey |
| v | |
| Kerry Roderick Davidson t/as The Pest Man |
| APPLICATION NUMBER: | APL142-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 27 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon Kerry Cullinane AM QC, Member |
| DELIVERED ON: | 16 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | Claim involves question of fact and creditability – no general principle involved – no basis for grant of leave |
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 (QCAT Act).
REASONS FOR DECISION
The applicant seeks leave to appeal pursuant to section 142 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) against a determination of the Tribunal at Cleveland on the eighth of March 2012 dismissing a claim by the applicant against the Respondent in a minor civil dispute.
Section 142 of the Act so far as is relevant provided:
Party may appeal
(1)A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.
...
(3)Also–
(a)an appeal under subsection (1) against any of the following decisions of the tribunal may be made only if the party has obtained the tribunal’s leave to appeal–
(i) A decision in a proceeding for a minor civil dispute;
(ii) A decision that is not the tribunal’s final decision in a proceeding;
(iii) A costs order: and
(b)an appeal under subsection (1) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal.
The grant of leave to appeal requires there to be some reason demonstrated therefore. Generally speaking, it is said that the following considerations are relevant to the question of the grant:
(a) Is there a reasonable prospect that the Applicant will obtain substantive relief?
(b) Is leave necessary to correct a substantial injustice to the Applicant caused by some error?
(c) Is there a question of general importance upon which further argument and a decision of the appellant court or tribunal would be to the public advantage?
The dispute between the parties here involved question of fact. The respondent conducts a pest control business and was engaged by the applicant to carry out pest treatment at her home in Campbell Road Sheldon.
She alleged two breaches of contract against the Respondent and this was the basis on which the matter proceeded before the Tribunal (see pp 3 and 8 of the transcript.)
In her application for leave to appeal the applicant sets out in considerable length and in narrative form the history of the matter as she sees it and raises a number of matters which she describes as breaches of contract. These go beyond the matters raised before the tribunal. It is difficult to see what losses are said to flow from these alleged breaches.
The application for leave must of course be dealt with on the basis of what took place before the tribunal.
Two breaches of the relevant standard (Subterranean Termite Treatment Proposal AS 2660) were alleged. The standard formed the basis of the contract.
The first relates to what was said to be the application of liquid detergent chemical within 24 hours of carrying out the knockdown with arsenic which I take to be a reference to the laying of the termite protectant barrier which had been placed around the house the previous day.
The relevant provision of the Australian Standard provides:
“An APVMA registered termiticide agent, registered for this purpose is carefully applied to termite working and/or leads which must then be left undisturbed for a period of approximately 7 – 28 days before re-examination and evaluation. If termite activity is still present the termiticide agent will be reapplied and the property reinspected in a further month. Any liquid chemical application recommended should not be applied until all termite activity has ceased within the property. The amount of termiticide agent applied varies with the method and chemical product used and the size of the infestation. Generally only small amounts of the product are required to control the colony unless otherwise advised on the label.
The second provision relied upon is item R under the headings ‘Paths, Patios, Pavers, and Steps’:
“We/you arrange to cut concrete and /or remove bricks or pavers to allow for a treatment strip of at least 150mm wide”.
The respondent’s answer to both of these matters was that the termites were coming from inside the house and not outside of it. He established that the termites were coming from a wall and he drilled down into that area to apply arsenic. There was on this basis no need to remove pavers.
As to the first matter the termite protection barrier had been put around the house the previous day. The arsenic was placed inside the house and not around it where the termite protection barrier had been placed.
The tribunal accepted the respondent’s explanation and dismissed the claim. There was supportive evidence in the form of a report from another pest controller.
Some question arose about a report by the respondent which the Standard required. He says that he supplied one verbally.
It was not contested that the termites had been successfully treated.
In his reasons the Tribunal member said:
“The role of the tribunal in these matters is to ascertain on balance of possibilities what is more likely that not to be the case in a particular set of scenarios”.
The reference to “the balance of possibilities” may have been a slip when one looks at the reasons overall. It is not the subject of any ground of appeal. In any case it would favour unduly the applicant as the person making the claim.
The dispute between the parties involved simple uncomplicated issues. The Respondent gave explanations of what the Applicant claimed as breaches. Those explanations were unchallenged and accepted.
There is no reason to doubt the correctness of the Tribunal’s finding.
No basis for the grant of leave has been shown. The application for leave is refused.
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