McVicker v Bunnings Group Ltd

[2021] QCATA 88

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McVicker v Bunnings Group Ltd & Anor [2021] QCATA 88

PARTIES:

PAULA LOUISE MCVICKER

(applicant/appellant)

v

BUNNINGS GROUP LIMITED

DIY RESOLUTIONS PTY LTD

(respondents)

APPLICATION NO/S:

APL172-20

ORIGINATING APPLICATION NO/S:

MCDO 119/19

MATTER TYPE:

Appeals

DELIVERED ON:

9 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.       Leave to appeal granted.

2.       Appeal allowed.

3.       The decision of the Tribunal dated 20 May 2020 is set aside.

4.       The application is remitted to the Minor Civil Disputes list at Cleveland for determination by another adjudicator/member.

5.       The evidence in the first hearing be evidence in the new hearing with liberty to the parties to present further evidence.

6.       That the parties be provided with a copy of the transcript for the hearing conducted on 13 February 2020 and 30 April 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS - where the applicant sought to present further evidence despite a direction providing a timetable to file evidence before the hearing – where the Tribunal refused to allow further evidence – where the applicant sought leave to admit fresh evidence in the appeal – whether in refusing the permit the applicant to lead further evidence in the hearing was a denial of procedural fairness – whether fresh evidence should be admitted in the appeal – whether prejudice to the respondents if allowed – whether new hearing should be ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28, s 29, s 142

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. In November 2018 Ms McVicker purchased a do-it-yourself kitchen from Bunnings Group Limited. The kitchens are on display at the Bunnings store and are produced and supplied by DIY Resolutions Pty Ltd through Bunnings’ outlets. The kitchens are supplied as flatpacks for self-assembly and installation by the purchaser. Bunnings/DIY Resolutions supplies comprehensive instructions on the assembly of the kitchen and installation. Neither Bunnings nor DIY Resolutions assembles or installs the kitchens.

2. The flatpack kitchen is called a “Kaboodle Kitchen System” which has various component parts such as benchtops, under bench cupboards, drawer components, overhead cupboards and various types of finishes and closures. The Kaboodle Kitchen catalogue promotes its DIY range being “focused on design, quality and functionality”. It goes on to promote the product by saying:

   We give you the whole kit and kaboodle, literally! from advice on design, through to detailed information on assembly and installation – we’ve got everything you need to make the end result everything you hoped it would be and more.

3. After purchasing the kit, Ms McVicker assembled the kitchen from the flatpacks with the assistance of Damon Tester, a carpenter, who she engaged to help…