McDonald v Mainstream Marine
[2013] QCATA 126
•8 May 2013
| CITATION: | McDonald v Mainstream Marine [2013] QCATA 126 |
| PARTIES: | Mr Graham Malcolm McDonald (Applicant) |
| V | |
| Mainstream Marine (Respondent) |
| APPLICATION NUMBER: | APL015 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 8 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr McDonald owns Laura, a 53 foot Carver. He bought it second hand from the USA about two years ago. Until recently, Mr McDonald didn’t use Laura much because of his work commitments.
Mr McDonald took Laura to marine specialists at Spinnaker Sound because he couldn’t get the revs past 1500. That entity put new air filters in and changed the oil. After that work, Mr McDonald could get Laura up to 2,200 revs but she was blowing smoke.
Mr McDonald then took Laura to Mainstream Marine with an instruction to fix the smoke. Mainstream Marine engaged Diesel Centre Gold Coast to test the injectors. Diesel Centre found that the injectors were faulty, so they were overhauled. Mainstream Marine did some further work on Laura and rendered an invoice for $5,328.55.
Mainstream Marine is located at Woongoolba. Mr McDonald lives on Bribie Island. Mr McDonald collected Laura on Australia Day 2012. About four hours into his trip back to Bribie Island, Mr McDonald noticed that Laura was still blowing smoke. In fact, Mr McDonald thought that she was blowing more smoke than when she first went to Mainstream Marine.
Mr McDonald complained to Mainstream Marine. Mr Purcell, of Mainstream Marine, arranged to visit Bribie Island to look at the problem. On the agreed day, Mr Purcell could not take Laura for a sea trial because the tides were wrong. He asked Mr McDonald to bring Laura back to Mainstream Marine later that week.
Mr McDonald later advised Mr Purcell that he would not bring Laura back. In May 2012, he engaged another mechanic who found, and repaired, a hole in the exhaust. Mr McDonald refused to pay Mainstream Marine. Mainstream Marine filed a claim for the invoiced amount. The Tribunal found in favour of Mainstream Marine and ordered Mr McDonald pay it $5,462.05.
Mr McDonald wants to appeal that decision. He says that the learned Adjudicator could not make a finding of fact because he has no diesel mechanical experience. He says that the learned Adjudicator made a decision based on a photo of Laura. He says that the learned Adjudicator was biased. He says that the learned Adjudicator totally ignored the Fair Trading Act.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Both parties have filed statements in this appeal. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could they 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?[6]
[5] ss 137 and 138 QCAT Act.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The parties have provided no explanation as to why this material was not available earlier. Most of it is simply a restatement of evidence presented at the original hearing. It does not have an important impact of the result. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[9]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[9] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The role of the learned Adjudicator is to decide facts based upon the evidence presented to him. The learned Adjudicator found that Mainstream Marine worked on Laura. He found that Mainstream Marine investigated the problem and decided that the injectors needed servicing and upgrading.[10] He found that the later repair of the exhaust was against a foundation of other extensive work.[11] He found that Mr McDonald benefited from that work.[12] He found that Mainstream Marine’s charge was consistent with the work done.[13] The learned Adjudicator did not need to be an expert in diesel mechanics to make these findings. The evidence supports these findings and I can find no compelling reason to come to a different view.
[10] Transcript page 47, lines 2,3.
[11] Transcript page 47, line 6.
[12] Transcript page 47, lines 7- 8, 10-11.
[13] Transcript page 47, lines 15-16.
There is no evidence that the learned Adjudicator made a decision based on a photo of Laura. The learned Adjudicator said, “You don’t have any photographs of the vessel at all do you?”[14] Mr McDonald replied, “No, only have a small one here. I can show you that one.”[15] The learned Adjudicator heard a lot more evidence before he made his decision and there is nothing in the transcript to suggest that he based his decision on the photo, or that he was in any way influenced by the photo.
[14] Transcript page 28, line 16.
[15] Transcript page 28, line 18.
Bias is a very serious allegation. The test is[16]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[16] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
There is nothing in the transcript that suggests the learned Adjudicator was biased.
Mr McDonald argued the application of consumer protection legislation in the original hearing. He pointed out that the consumer legislation implies a guarantee that Mainstream Marine’s work was provided with due care and skill, was fit for the purpose, and was completed within a reasonable time. Mr McDonald says that Mainstream Marine breached those obligations. The learned Adjudicator found otherwise. The learned Adjudicator also advised Mr McDonald that he should have given Mainstream Marine the opportunity to rectify any defective work. The evidence supports these findings and I can find no compelling reason to come to a different view.
There is no question of general importance that should be determined by the Appeal Tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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