McElligott v Croke
[2012] QCATA 208
•23 October 2012
| CITATION: | McElligott v Croke [2012] QCATA 208 |
| PARTIES: | Joyce Alice McElligott (Applicant/Appellant) |
| v | |
| Brian Croke t/as CSI Soil Testing (Respondent) |
| APPLICATION NUMBER: | APL127-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 23 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE AND EVIDENCE – PROCEDURAL FAIRNESS – OPPPORTUNITY TO PRESENT CASE – where applicant claims she was not given an opportunity to present her case – whether applicant given a fair hearing – whether applicant afforded natural justice Queensland Civil and Administrative Tribunal Act 2009, s 32 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Mrs McElligott engaged Mr Croke to do soil testing on her property. She also engaged him to design a waste water treatment system. Mr Croke did the work and rendered an invoice, which Mrs McElligott paid.
About six months later, Mrs McElligott asked for another design for the waste water treatment system. Mr Croke again undertook the work and rendered an invoice for $347. He was not paid.
Both of Mr Croke’s designs provided for dispersal of the waste water above the Q100 flood line. Little of Mrs McElligott’s land is above that line. Some time after receiving Mr Croke’s second design, Mrs McElligott engaged another contractor who designed a system that allowed for dispersal below the Q100 flood line.
Mrs McElligott then brought a claim against Mr Croke in QCAT’s minor civil disputes jurisdiction claiming a refund of the money she had paid for his first design. Mr Croke counter-claimed for the outstanding $347. A Magistrate, sitting as a member of the Tribunal, dismissed Mrs McElligott’s claim and ordered that she pay Mr Croke $347.
Mrs McElligott has filed an application for leave to appeal the learned Magistrate’s decision. She says that the Magistrate erred in not permitting her to present evidence about the Q100 flood level and its effects on the placement of the waste water treatment system. She also says that she was not permitted to properly argue her case that Mr Croke had provided her with misinformation. She also contends that the learned Magistrate did not give sufficient weight to her assertion that she had a right to rely on Mr Croke’s professional opinion.
Mrs McElligott says that, if she had been able to present all her evidence and argue her case properly the Magistrate would have been able to reach the correct decision, namely a decision in her favour.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The Tribunal will ordinarily only grant leave to appeal where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The learned Magistrate did consider Mrs McElligott’s documents.[1] He accepted that there was a Q100 flood line on the property, that the final waste water system design provided for dispersal below that line, and that this design was acceptable to Council. The documents do not advance Mrs McElligott’s case beyond those facts.
[1] Transcript, page 12 lines 3 and 17.
The transcript does not support the suggestion that Mrs McElligott was not given an opportunity to present her case. Mrs McElligott, through her daughter, did argue that Mr Croke provided her with misinformation[2] and that she was entitled to rely in his expertise in the design of the system[3]. The learned Magistrate allowed Ms McElligott to argue her case, without interruption, for a lengthy period.
[2] Transcript, page 7, lines 42-43, 46-49.
[3] Transcript, page 6, lines 33-34; page 7, lines 9-41.
The transcript is persuasive that the Tribunal allowed Mrs McElligott a fair hearing and afforded her natural justice. It is also clear that she had every necessary opportunity to present those elements of her case about which she now complains.
Mrs McElligott’s submission that the learned Magistrate did not give sufficient weight to her submissions is really another way of saying that she disagreed with his decision. In the Reasons he gave at the completion of the hearing the learned Magistrate explained how and why he came to the conclusion that, on the evidence, Mr Croke was entitled to payment and Mrs McElligott was obliged, in terms of her agreement with him, to make that payment.
Those reasons are, with respect, clear and straightforward. In particular, the Magistrate was persuaded that Mrs McElligott knew of Mr Croke’s policy to keep all waste water above the Q100 level. That finding was reasonably open on the evidence; once it was made, the subsequent finding of law, and fact, that Mrs McElligott was obliged to pay his charges was also fairly open.
I can find no error of law in the learned Magistrate’s decision. There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonable prospect of substantive relief on appeal; and 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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